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 NEW YORK (STATE) SUPREME COURT. 
 APPELLATE DIVISION. 
 
 RULES OF THE APPELLATE TERM, SUPREME COURT, 
 FIRST DEPARTMENT WITH NOTES, REFERENCES 
 AND INDEX. 
 
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 Rules ol the appellate term. Supreme Cou 
 
 3 1924 022 815 835 
 
 THE APPELLATE TEUM, SUPREIE 
 eOORT, FiRST BEPARTlEriT 
 
 WITH 
 
 ii@TIS» SEPISEIIGIS AUD IHPfiH 
 
 COMPILED BY 
 
 STIULEY H. BEVmS 
 
 (CONFrOENTIAL CLERK OF THE APPELLATE TERM) 
 ATTORNEY AND COUNSELLOR AT LAW 
 
 m, sfmt^R BEViMS 
 
 ATTORNEY AND COUNSELLOR AT LAW 
 
The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
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A^^'vLUfift PN\S^W~ 
 
 Rules of Appellate Term' 
 
 Supreme Court, First Department 
 
 NOTES, REFERENCES and INDEX 
 
 COMPILED Br 
 
 STANLEY H. BEVINS 
 
 (confidential clerk of the appellate term) 
 attorney and counsellor at law 
 
 AND 
 
 M. SPENCER BEVINS 
 
 ATTORNEY AND COUNSELLOR AT LAW 
 
 PRICE $1.00 
 
B7^a9'3 
 
 
 THE REPORTER COMPANY 
 WALTON, n. Y. 
 
7 
 
 J 
 
 Appellate Term 
 
 Jurisdiction 
 
 The jurisdiction of the Appellate Term to entertain 
 and determine appeals from judgments and orders of 
 the City Court is given by virtue of Sections 1 344 and 
 3188 to 3190 of the Code of Civil Procedure, inclusive, 
 and to entertain and determine appeals from the Mu- 
 nicipal Court by virtue of Section 310 of the Munici- 
 pal Court Act, said sections read as follows : 
 
 Sec. 1344 (Am'd., 1895, 1902, 1904). Appeal, 
 where and how heard. 
 
 "An appeal taken as prescribed in this title 
 must be heard by the Appellate Division of the 
 Supreme Court, except that appeals from the 
 judgment of any Municipal Court in either of 
 the Boroughs of Manhattan or the Bronx in 
 the City of New York, or from a judgment or 
 order of the City Court in the City of New 
 York, may be heard by the Appellate Division 
 of the Supreme Court, or by such justice or 
 justices of the Supreme Court as may be desig- 
 nated for that purpose by the justices of the 
 Appellate Division sitting in the First Judicial 
 Department. In case an appeal is heard by a 
 justice or justices of the Supreme Court as 
 hereinbefore provided the justice or justices by 
 whom such appeal was determined, or a justice 
 of the Appellate Division in the First Judicial 
 Department, may allow an appeal to be taken 
 to such Appellate Division from such deter- 
 mination; and appeals from inferior courts 
 heretofore heard by the Superior Court of 
 Buffalo shall be heard by the Appellate Divi- 
 sion of the Supreme Court in the Fourth Ju- 
 
4 Rules of the Appellate Term 
 
 dicial Department, or by such justice or justices 
 of the Supreme Court as may be designated 
 for that purpose by the justices of the Appel- 
 '' late Division of the Fourth Judicial Depart- 
 ment. The provisions of title fourth of this 
 chaper, relating to the hearing of appeals, taken 
 in the Supreme Court, and to the subsequent 
 proceedings thereupon, apply to an appeal taken 
 as prescribed in this title, except as specified 
 in the next section." 
 
 Sec. 3188 (Ara'd., 1895, 1902). Appeal from a 
 judgment. 
 
 "An appeal to the Supreme Court may be 
 taken from a final or interlocutory judgment 
 rendered in the City Court of the City of New 
 York in a case where an appeal may be taken 
 to the Appellate Division of the Supreme Court 
 from a final or interlocutory judgment rendered 
 in the Supreme Court, as prescribed in Section 
 1346 and Section 1349 of this Act." 
 
 Sec. 3189. (Am'd., 1895, 1902.) Id., from an 
 
 order. 
 
 "An appeal tO' the Supreme Court may also 
 be taken from an interlocutory judgment ren- 
 dered or an order made at chambers, or at a 
 Special Term or a Trial Term of said City 
 Court, or from an order made by a judge there- 
 of out of court, in a case where an appeal may 
 be taken to the Appellate Division of the Su- 
 preme Court from an interlocutory judgment 
 rendered, or an order made, in like manner, 
 as prescribed in Sections 1347, 1348, 1349 of 
 this act. Upon such an appeal the Supreme 
 Court shall have full power to review any ex- 
 ercise of discretion by the court or judge be- 
 low." 
 Sec. 3190. (Am'd., 1902.) Time to appeal and 
 
 proceedings thereupon. 
 
 "An appeal, authorized by either of the last 
 two sections, must be taken within ten days 
 
Rules of the Appellate Term 5 
 
 after service of a copy of the judgment or order 
 appealed from, and written notice of the date 
 of the entry thereof. In every other respect, 
 titles First, Third and Fourth of Chapter 
 Twelfth of this act, so far as the same are ap- 
 plicable thereto, apply to and govern an appeal, 
 taken as prescribed in either of the last two 
 sections." 
 Sec. 310. (Mun. Ct. Act.) amended 1907-1910. 
 
 "An appeal from a judgment rendered in 
 an action, or a final order made in summary 
 proceedings in the Municipal Court of the city 
 of New York, or from orders as hereinbefore 
 provided may be taken to the Supreme Court. 
 Such appeal shall be heard in such manner and 
 by such justice or justices as the Appellate Di- 
 vision of the Supreme Court in the Judicial De- 
 partment, embracing the district wherein the 
 action is brought shall direct, except that the 
 Appellate Division of the Second Judicial De- 
 partment may direct that such appeal may be 
 heard directly before that court ; * * *. The 
 Appellate Court may reverse, affirm, or modify 
 the judgment, order or final order appealed 
 from, and where the judgment, order or final 
 order is reversed may order a new trial, in the 
 Municipal Court in the district in which the 
 action is brought. Where a judgment, order 
 or final order is modified or a new trial is or- 
 dered costs shall be in the discretion of the Ap- 
 pellate Court. 
 
 An appeal taken from a judgment or final 
 order brings up for review an intermediate 
 order which is specified in the notice of appeal 
 and necessarily affects the judgment or final 
 order and has not been reviewed by a separate 
 appeal therefrom. The right to review such 
 intermediate order as prescribed in this section 
 is not affected by the expiration of the time in 
 which a separate appeal therefrom might have 
 been taken." 
 
6 Rules or the Appellate Term 
 
 Terms-Where and When Held 
 
 The terms must be held within the first judicial de- 
 partment (Section 1344 of the Code of Civil Pro- 
 cedure, sitpra) and are held in the County Court 
 House of the County of New York (see Rule "I," 
 page;). 
 
 Powers 
 
 The Court has power over its own records and cal- 
 endar. Once the case upon appeal from a City Court 
 judgment, or the papers upon an appeal from an order 
 of the City Court, or the return from a Municipal 
 Court has been filed in the Appellate Term, they can 
 only be removed therefrom by order granted upon an 
 application made in the Appellate Term for that pur- 
 pose. An order made in a Lower Court recalling the 
 return for correction or amendment would be of no 
 force, and the Clerk of the Appellate Term would dis- 
 regard such an order. Koeppel v. Koeppel, 95 N. Y. 
 Supp., 812. 
 
 The power of the Appellate Term over a case upon 
 an appeal from a judgment or order of the City or 
 Municipal Court is conferred upon it by Rule 3 of the 
 Rules for the hearing of appeals from the City and 
 Municipal Courts. After the case has been settled and 
 ordered on file in the Court below, a motion to dismiss 
 an appeal for failure to file the return should be 
 made in the Appellate Term, and not in the Court be- 
 low. McCarthy v. Met. St. Ry. Co., 96 N. Y. Supp., 
 139; 48 Misc., 633. Unless the appellant has caused 
 the return, either from a judgment or an order of the 
 Municipal Court to be filed within thirty days after 
 the notice of appeal has been served, the Respondent 
 can move in the Appellate Term to have the appeal dis- 
 missed. 
 
Rules op the Appellate Term 7 
 
 Rules 
 
 These rules are made by the Justices of the Appellate 
 Division of the First Department (Cons'd Laws, Chap. 35, 
 Sees. 99-100). They are for the regulation of the practice in 
 the hearing of appeals in the Appellate Term, and have the 
 force and effect of statutes. Matter of Moore, 108 N. Y., 
 280; Boyer vs. Boyer, 129 A. D., 647, 114 Supp., 15; and the 
 Court is not at liberty to disregard them. 
 
 RULE I.— TERMS. 
 
 There shall be a term of the Supreme Court for the 
 hearing of appeals from the City Court and the Munici- 
 pal Court of the City of New York, in the Boroughs 
 of Manhattan and the Bronx which shall commence 
 on the first Monday of October, November, December, 
 January, February, March, April, May and June in 
 each year and shall continue from day to day during 
 each of said months until all appeals ready for hear- 
 ing are heard and disposed of. This term of the 
 court shall hold its sessions in the Court House in the 
 County of New York, and shall be held by three Jus- 
 tices of the Supreme Court, duly designated to hold 
 said term, and shall be known as the Appellate Term. 
 
 RULE II.— CALENDAR. 
 
 The clerk of such term of the Supreme Court shall 
 make up a calendar of all appeals to be heard each term, 
 and publish the same in the Law Journal at least eight 
 days before the commencement of the term. No ap- 
 peal shall be placed on such calendar unless the return 
 from the court below is duly filed with the clerk of 
 such term at least ten days before the commencement 
 of the term ; nor, in the case of appeals from the City 
 
8 Rules of the Appellate Teem 
 
 Court, unless an affidavit is filed with such clerk at 
 least ten days before the commencement of the term, 
 by which it appears that three copies of such return, 
 duly printed as required by the General Rules of Prac- 
 tice, have been served upon the attorney for the re- 
 spondent. Upon such return being filed as aforesaid, 
 and in the case of appeals from the City Court upon an 
 affidavit as aforesaid being also filed, the clerk shall 
 place the appeal upon, the calendar in the order in which 
 the return was filed. 
 
 Upon an appeal from the City Court the judgment 
 or order of the court shall be entered in the office of 
 the clerk of the Supreme Court; a certified copy of 
 such judgment or order shall be annexed to the return 
 from the City Court, which certified copy and return 
 shall be transmitted to the City Court, as required by 
 section 1345 of the Code of Civil Procedure. Upon 
 an appeal from the Municipal Court, the judgment or 
 order of the Appellate Term shall be entered in the of- 
 fice of the clerk of the Supreme Court, and a certified 
 copy thereof annexed to the return received from the 
 Municipal Court, which return and certified copy of the 
 judgment or order shall be returned to the district of 
 the Municipal Court from which the appeal was taken, 
 as provided by section 327 of Chapter 580 of the Laws 
 of 1902, which shall remain on the file in the said 
 Municipal Court. 
 
 NOTES. 
 
 Under this rule, upon an appeal from a judgment of the 
 City Court, the printed case, and the printed papers upon 
 appeal from an order of the City Court, and a return upon 
 an appeal from a judgment or order of the Municipal Court, 
 must be filed with the Clerk of the Appellate Term, at least 
 ten (10) days prior to the fir-st day of the term or the appeal 
 will not be placed upon the calendar for the hearing of ap- 
 peals. This requirement, if complied with, gives either party 
 
Rules op the Appellate Term 9 
 
 an opportunity to serve a notice of argument, which notice 
 must be served at least eight (8) days before the first day of 
 the term (Sec. 780 of the Code of Civil Procedure, and Sec. 
 325 of the Municipal Court Act) ; if service is made through 
 the postofRce, three days shall be added to the time specified 
 (Sec. 798 of the Code of Civil Procedure). Such notice with 
 proof of service must be filed with the Clerk of the Appellate 
 Term on the Monday preceding the term at which the appeal 
 is to be heard (See Rule V). 
 
 On appeals from judgments and orders of , the City 
 Court, however, the mere filing of the printed case or papers 
 upon appeal is not sufficient to insure its appearance upon 
 the calendar. In addition to the filing of such case or papers, 
 there must be filed an affidavit showing that three (3) copies 
 of the printed case or papers have been served upon the re- 
 spondent, and a note of issue must also be filed with the Clerk 
 of the Appellate Term. After the printed case or papers 
 have been filed with the Clerk, either party may file such 
 affidavit and note of issue, and the case will then be placed 
 upon the calendar. 
 
 Upon an appeal from a judgment of the City Court, the 
 appellant must make a case and have the same settled and 
 signed as prescribed by Section 997 of the Code of Civil 
 Procedure. All that occurred on the trial with regard to 
 requests to charge, and exceptions thereto, should be con- 
 tained in the case (New York Rubber Co. vs. Rothery, 29 
 St. Rep., 37). 
 
 Where a case is not certified as required by law, it will be 
 sent back for proper certificate. ( Stanton vs. Supreme Coun- 
 cil of Catholic Mut. Ben. Ass'n, 8 Misc., 366; 29 N. Y. Supp., 
 390.) 
 
 An appeal will be stricken from the calendar for want of 
 proper certification or stipulation. (Crawford vs. Price, 68 
 Hun, 607; 22 N. Y. Supp., 644.) 
 
 If the record does not contain a proper certificate the ques- 
 tion should be raised by motion to dismiss. (Woolsey vs. 
 Lasher, 35 A. D., 108, at p. 110; 54 N. Y. Supp., 737.) 
 
 In cases of trial without a jury, unless there is an ex- 
 press certificate of the Trial Court that the case, as settled, 
 contains all the evidence, only questions of law can be re- 
 viewed upon appeal. (Gorham Manufacturing Co. vs. Seale, 
 
10 Rules of the Appellate Term 
 
 3 App. Div., 515.) Affidavit of plaintiflf's attorney stating 
 that the case contains all the evidence cannot take the place 
 of such statement by the court. 
 
 A certificate stating that the case contains "all the testi- 
 mony given, all of the exhibits of the parties, and all the 
 proceedings had upon the trial," is equivalent to a certificate 
 that the case contains all the evidence bearing upon any dis- 
 puted question of fact. (Orcutt vs. Rickenbrodt, 42 App. 
 Div., 238; (see CoUender vs. Reardon as to exhibits, 121 
 N. Y. Supp., 531, reversed on another point). Also Rule 31 
 of the General Rules of Practice. 
 
 Where there is no jury trial, the case on appeal must af- 
 firmatively show, by way of certificate or stipulation that it 
 contains all the evidence adduced at the trial, or the Appel- 
 late Term will not inquire whether the verdict is contrary to 
 the evidence or against the weight of evidence. (Empire 
 Trust Co. vs. Devlin, 90 N. Y. Supp., 1066; 45 Misc., 583; 
 Hilgert vs. Block, 90 N. Y. Supp., 1067.) 
 
 If a trial judge expresses his opinion on the merits of a 
 case in the presence of the jury, the proper method of re- 
 view is by a motion on the minutes, or by including such ex- 
 pression in a case made and by moving upon such case for a 
 new trial under Sec. 1002 of the Code of Civil Procedure. 
 (Wooley vs. Stevens, 17 Weekly Digest, 382; Frank vs. 
 Subin, 123 N. Y. Supp., 890.) 
 
 A stipulation, signed by the attorneys of the respective 
 parties to the effect that the case on appeal contains all the 
 evidence given upon the trial, may be made with the same 
 force as a statement to that effect made by the trial justice. 
 Such stipulation should be in the following form: 
 
 Stipulation. 
 
 It is hereby stipulated that the foregoing case con- 
 tains all the evidence given upon the trial of this ac- 
 tion and that the same be settled, signed and ordered 
 to be filed and annexed to the judgment roll herein. 
 
 A stipulation may also be made of like character, waiving 
 certification and should be in the following form: 
 
 Stipulation Waiving Certification. 
 
 Pursuant to Section 3301 of the Code of Civil Pro- 
 cedure it is hereby stipulated that the foregoing con- 
 sists of true and correct copies of the notice of appeal, 
 
Rules op the Appellate Teem 11 
 
 the judgment, roll and case and exceptions as settled, 
 and the whole thereof, now on file in the office of the 
 Clerk of the City Court of the City of New York, and 
 certification thereof by the Clerk of said Court, pur- 
 suant to Section 1353, is hereby waived. 
 
 There must also be an order, made by the trial justice and 
 signed by him, ordering the printed case to be filed with the 
 Clerk of the Appellate Term, or the case will not be received 
 by that Clerk for filing. The order may be in the following 
 form: 
 
 Order Filing Record in Appellate Term. 
 
 Pursuant to Section 1353 of the Code of Civil Pro- 
 cedure, it is 
 
 Ordered, that the foregoing printed record be filed 
 in the office of the Clerk of the Appellate Term of the 
 Supreme Court, New York County, as the case on 
 appeal herein. 
 
 In appeals from judgments or orders of the Municipal 
 Court, the mere filing of the return places the case upon the 
 calendar, according to the practice in the Appellate Term of 
 the Supreme Court, First Department, where it will remain 
 until disposed of. No note of issue is required. Unless 
 some disposition of the appeal is made prior to its third ap- 
 pearance on the calendar, the Court will dismiss the appeal, 
 upon its own motion, unless for good cause shown, the time 
 of hearing is extended (Section 325 of the Municipal Court 
 Act) . This rule is rigidly enforced and an excellent reason 
 must be given, or a dismissal of the appeal will follow. 
 
 "This provision is a salutary one, and owing to the 
 great number of appeals taken to this Court, it must 
 be strictly enforced. The time of the Court should not 
 be taken up in calling cases for term after term, at 
 which call neither side appears, and when the case 
 may have been settled or abandoned. The appellant's 
 only ground for relief, is that he saw it too late to 
 notice it for argument, and not having received a 
 notice of argument from the other side believed it 
 would go over to another Term. In other words, the 
 appellant relied upon the court to violate a provision 
 of the statute and allow the case to remain on the 
 calendar.'' Moses v. Kane, Motion, Appellate Term, 
 January, 1907, Law Journal, not reported. 
 
12 Rules of the Appellate Term 
 
 "The Appellate Term is burdened with appeals in 
 which litigants are ready and anxious to have their 
 cases promptly disposed of, and the revival of appeals 
 long since dismissed for failure to prosecute cannot be 
 approved of." Borchardt v. Scott, Motion, Appellate 
 Term, Law Journal, February 20th, 1908." 
 
 The placing of an appeal upon the calendar alone, does not 
 entitle an appeal to be heard. A notice of argument must 
 also be served and filed (see Rule V). Either party may 
 serve and file a notice of argument (see page 33, post). 
 A notice of argument once served and filed is sufficient ( Sec- 
 tion 325 of the Municipal Court Act). Townsend v. Keen- 
 an, 2 Hilt., 544. 
 
 The decision of the Appellate Term, when handed down is 
 accompanied by a proper order or judgment of the Court. 
 In appeals from the City Court, the Clerk causes the re- 
 mittitur to be sent to the City Court, where the judgment or 
 order of the Appellate Term is made the judgment or order 
 of that Court. The City Court requires that a notice of three 
 (3) days be given before the judgment of the Appellate Term 
 will be made the judgment or order of that Court (Rule, Law 
 Journal, January 21st, 1909). 
 
 Upon the decision of an appeal from the Municipal Court, 
 the Clerk of the Appellate Term immediately sends the re- 
 turn to the Clerk of the District from which it came, with a 
 certified copy of the judgment or order of the Appellate 
 Term. The prevailing party may then proceed to tax the 
 costs and the Clerk will enter his judgment (Section 327, 
 341 of the Municipal Court Act) . 
 
 When a new trial is ordered in the Municipal Court, the 
 judgment of the Appellate Term fixes a date for the new 
 trial therein, and the Clerk of the lower Court places the case 
 upon the calendar for that date. The Appellate Term in 
 October, 1906, held in the motion in the case of Worms v. 
 Wesser, not reported, that the Municipal Court had the right 
 to fix the time for a new trial, if the time fixed by the Ap- 
 pellate Term had expired. Section 3065 of the Code of Civil 
 Procedure, made applicable to the Municipal Court by Sec- 
 tion 20 of the Municipal Court Act, provides : 
 
 "Where a new trial is directed before a justice pre- 
 scribed in the last two sections, the parties must ap- 
 pear before him at the time and place specified in the 
 order of the Appellate Court, without service of any 
 
Rules of the Appellate Term 13 
 
 notice or of a copy of the order. Thereupon the like 
 proceedings must be had in the action, as upon the re- 
 turn of a summons personally served." 
 
 The pleadings may, therefore, be amended or a jury trial 
 demanded (Freifeld v. Sire, 84 N. Y. Supp., 144), or an ad- 
 journment had, or any other proceeding that could have been 
 taken upon the return day of the summons. 
 
 A resettlement of an order may be asked for upon two (2) 
 days' notice (see Rule "VIII," Post). If a motion for such 
 resettlement is denied, it is usually denied, with costs. A 
 copy of the proposed resettled order should be submitted with 
 the moving papers and such order should recite that it 
 should take the place of the original order, giving the date of 
 such original order. All orders, except orders for leave to 
 appeal, are signed by the presiding justice, or in his ab- 
 sence by one of the justices who constituted the Court which 
 heard the appeal. Orders for leave to appeal must be signed 
 by a majority of the justices who heard the appeal. 
 
 RULE III. 
 
 Failure to File Return and Motion for Dis- 
 missal Therefor. 
 
 "In appeals from the City Court, in case the appel- 
 lant does not cause the return to be filed with the clerk 
 of the Appellate Term, and print and serve three (3) 
 copies thereof upon the attorney for the respondent, 
 as required by the General Rules of Practice, within 
 twenty (20) days after the settlement of the case upon 
 appeal, and in case of an appeal from an order of the 
 City Court within fifteen days after service of the no- 
 tice of appeal upon the attorney for the respondent, the 
 respondent may move, upon five (5) days' notice, on 
 the first day of the term of such court, to dismiss the 
 appeal, and the appeal shall be dismissed unless the time 
 of the appellant to cause such return to be filed and 
 copies thereof to be printed and served be extended by 
 
14 Rules of the Appellate Term 
 
 the justices assigned to hear such appeals, or one of 
 them, for good cause shown. 
 
 In Appeals from the Municipal Court of the City of 
 New York, if the appellant does not procure the return 
 to be made to the Appellate Court, within the time pre- 
 scribed by section 317 of Chapter 580 of the Laws of 
 1902, the respondent may move, upon five (5) days' 
 notice, on the first day of the term, to dismiss the ap- 
 peal, and such appeal shall be dismissed unless the 
 justices assigned to hear such appeals, or one of them, 
 for good cause shown, shall extend the time." 
 
 NOTES. 
 
 This rule was amended by the Appellate Division on De- 
 cember 31st, 1909. The amendment consists in leaving out 
 all reference to an attachment, which is now Rule "IV." 
 
 The Appellate Term will not entertain a motion to dismiss 
 an appeal from a judgment of the City Court, until twenty 
 (20) days after the settlement of the case, upon appeal. 
 Shubert Theatrical Co. v. Zeigfeld, 113 N. Y. Supp., 801. 
 
 Any motion regarding a case on appeal from a judgment 
 of the City Court, except for a stay of proceedings, made, 
 prior to the settlement of the case, must be made in the 
 Lower Court. Baylor v. Levy, 113 N. Y. Supp., 802; Bank- 
 er's Money Order Ass'n v. Nachod, 125 App. Div., 373 ; S. C, 
 109 N. Y. Supp., 847; Hansen v. Walsh, 117 App. Div., 39; 
 S. C, 101 N. Y. Supp., 1061; Shubert Theatrical Co. v. Zeig- 
 feld, supra. 
 
 The remedy of the respondent, if the appellant fails to 
 have the case on appeal settled and signed by the trial jus- 
 tice, is to move in that Court for an order declaring the ap- 
 peal abandoned. Carr v. Butler, 32 Misc., 657; 67 N. Y. 
 Supp., 491. 
 
 A court of original jurisdiction has power to declare a 
 case on appeal abandoned for non-compliance with practice. 
 Levy V. Fidelity & Deposit Co., 87 N. Y. Supp., 487. 
 
 Abandonment of appeal not the same as declaring appeal 
 dismissed (Id.), but see True v. Sibley, 29 N. Y. Supp., 704; 
 s. c, 61 St. Rep., 200. 
 
Rules of the Appellate Term 15 
 
 Order declaring appeal abandoned not reviewable on ap- 
 peal. Fromme v. Perschke, 95 N. Y. Supp., 525. 
 
 Remedy when appeal is declared abandoned. It is the duty 
 of the appellant to move to be relieved from the order or 
 proceed to have the appeal heard upon the judgment roll 
 alone, in default of which the appeal will be dismissed. Heins 
 V. Manhattan Ry. Co., 8 Misc., 686; s. c, 28 N. Y. Supp., 780; 
 True v. Sibley, 29 N. Y. Supp., 704; s. c, 61 St. Rep., 200. 
 
 If an order is granted in the City Court declaring an ap- 
 peal abandoned, the Appellate Term will, upon motion based 
 upon these facts, dismiss the appeal. 
 
 In an appeal from an order of the City Court the time to 
 print and serve the papers is limited to fifteen (15) days 
 from the date of the service of the notice of appeal. Usually, 
 upon appeal from an order no "case" is made, the appeal 
 being heard upon the papers used upon the motion and re- 
 cited in the order, duly certified by the Clerk or stipulated 
 by the attorneys. 
 
 This rule is materially different in its phraseology from 
 Rule 41 of the General Rules of- Practice; as that rule re- 
 quires that the papers "shall be filed," while Rule "III" 
 simply provides for the making of a motion if the papers are 
 not filed within the time limited by the rule. McCarthy v. 
 Met. St. Ry. Co., 48 Misc., 633; 96 N. Y. Supp., 139. 
 
 It would seem, therefore, that if the appellant offered to 
 serve his papers upon appeal at any time prior to the making 
 of a motion to dismiss by the respondent, that the respondent 
 would not be justified in refusing to accept service upon the 
 ground that the appellant's time to serve had expired. In 
 the case of Dubroff v. North River Ins. Co., in the Appellate 
 Term, January, 1910, the respondent's attorney returned tlie 
 printed papers upon appeal, and the appellant's notice of ar- 
 gument, after service had been made, upon the ground that 
 the time in which to print and serve the papers, under Rule 
 "III," had expired, and immediately moved to dismiss the 
 appeal upon that ground. This motion was denied, without 
 opinion, but, undoubtedly, upon the ground that the motion 
 having been made after service of the printed papers, it was 
 too late and the papers should have been accepted. Never- 
 theless it is unsafe to suffer a default, as the Court undoubt- 
 edly has power to dismiss for failure to comply with the rule. 
 
 The rule that prior to the settlement of a case, all motions 
 relating thereto, except for a stay of proceedings, must be 
 
16 Rules op the Appellate Term 
 
 made in the Lower Court, does not apply to appeals from 
 orders, since there is no "settlement" upon appeals from 
 orders. An order of the City Court extending the time in 
 which to serve the printed papers upon an appeal from the 
 City Court, or to compel the respondent to accept service of 
 such papers or of a notice of argument will not be regarded 
 by the Appellate Term. Pfaelzner v. Gassner, Motion, Ap- 
 pellate Term, May, 1907, not reported. Such motion should 
 be made in the Appellate Term. 
 
 A motion to extend the time in which to print and serve a 
 case, after settlement thereof, should be made in the Appel- 
 late Term. McCarthy v. Met. Ry. Co., 96 N. Y. Supp., 139. 
 
 After the printed papers on appeal have been served and 
 filed the Lower Court has no control over them. Koeppel v. 
 Koeppel, 95 N. Y. Supp., 812. 
 
 A stay granted in the City Court pending the hearing of a 
 motion to extend the appellant's time in which to file his 
 papers upon appeal will not be regarded by the Appellate 
 Term. Stickney v. McGraw, Motion, Law Journal, October 
 16th, 1909, not reported. See also, Bruce-Webster vs. Ab- 
 bott, 125 N. Y. Supp., 635. 
 
 Care should be taken that the order appealed from contains 
 a reference to all the papers used upon the motion, in the 
 Lower Court, as an appeal must be heard upon the papers 
 recited in the order, and only such papers will be considered. 
 Farmer's National Bank v. Underwood, 12 App. Div., 269; 
 Wells Fargo Co. v. W. C. & P. R. R. Co., 12 App. Div., 47, 
 s. c, 42 N. Y. Supp., 225; Silo v. Linde, 31 Misc., 264; s. c, 
 64 N. Y. Supp., 55. See Rule III of the General Rules of 
 Practice. 
 
 Unless an attorney advises his adversary and the Court 
 that he submits an affidavit, he cannot subsequently procure 
 its recital in an order upon a motion for a resettlement 
 thereof. Silo v. Linde, supra. 
 
 An appeal from an order will be dismissed where it ap- 
 pears from the record that affidavits used in the motion and 
 recited in the order have not been printed. Cowen v. Arnold, 
 57 Hun, 588; s. c, 11 N. Y. Supp., 95. 
 
 Where an order is resettled and so materially changes the 
 original order that an entirely different record is presented 
 and no notice of appeal from the order as resettled has been 
 served, the appeal from the original order should be dis- 
 
Rules of the Appellate Term 17 
 
 missed. Dewsnap v. Bachrach, 104 N. Y. Supp., 330; s. c, 
 119 App. Div., 167. 
 
 A denial of a motion to resettle an order is appealable. 
 Gleason v. Smith, 34 Hun, 547; Zimmer v. Met. St. Ry. 
 Co., 28 App. Div., 504; Raymond v. Tiffany, 115 App. Div., 
 350; Boskowitz v. Sulzbacher, 128 App. Div., 537, 112, Supp., 
 890. 
 
 A motion to resettle an order should be made in the Lower 
 Court. Smith v. Smith, 43 Supr. Ct., 140. 
 
 After service of a notice of appeal from an order, the 
 Lower Court has no power to set it aside or to permit it to 
 stand. Zaida v. Ry. Co., 97 App. Div., 137; 89 N. Y. S., 606. 
 
 The Special Term of the City Court has no authority to 
 order an attorney to accept service of a notice of appeal 
 from a judgment of that Court. Gersman v. Levy, 108 N. Y. 
 Supp., 1107; affirmed, 126 App. Div., 83. 
 
 As to entry of orders, motions, etc., see above case. An 
 order must be entered before an appeal can be taken. Bay- 
 lies' New Trials and Appeals, 2nd Ed., p. 152. An entry of 
 an order nunc pro tunc cannot give life to a notice of appeal 
 that was a nullity in its inception. Guarantee Trust Co. v. 
 R. R. Co., 160 N. Y., 1 ; Sugden v. Reiser, Motion, App. Term, 
 October, 1908, not reported. 
 
 Upon an appeal from an order of the City Court, the Ap- 
 pellate Term has power to stay the trial of the action in 
 which the order was made, until the hearing and determina- 
 tion of the appeal. Fleischman v. Mengis, 118 N. Y. Supp., 
 671. Also upon an appeal from an order of the Municipal 
 Court. Costello vs. 42nd St. Ry. Co., Law Journal, April 
 13th, 1906. 
 
 If an order of the Municipal Court is not an appealable 
 one, no stay therein will be granted by the Appellate Term. 
 Smolens v. Cameron, Motion, Law Journal, February 1st, 
 1910, not reported. 
 
 In appeals from the Municipal Court, it is the appellant's 
 duty to see that the return is filed within the statutory time. 
 The return must contain all the proceedings including the 
 evidence. A return which the Clerk certifies contains "sub- 
 stantially" all the evidence is insufficient. Paladino v. Staten 
 Island Midland Rwy. Co., 126 App. Div., 347; s. c, 110 N. Y. 
 Supp., 621. 
 
18 Rules op the Appellate Term 
 
 An Appellate Court takes the case as it finds it. Bing- 
 hamton O. H. Co. v. City of B., 156 N. Y., 651. 
 
 Although Section 317 of the Municipal Court Act provides 
 that the "Clerk of the Court" must make the return within 
 thirty (30) days after the payment of the costs and fees, 
 the justice who tried the case must settle the return, as the 
 Clerk is a mere ministerial officer, having no judicial func- 
 tions. Collins V. Davis, 114 N. Y. Supp., 792. 
 
 Appeals from judgments must be settled and allowed by 
 the trial justice, or they will not be filed by the clerk of the 
 Appellate Term, and the consent of the parties that a case 
 may be settled, cannot be substituted for that of the trial 
 justice. Middleman vs. Stevenson, et al., 113 Supp., 762. 
 
 The return is conclusive and must control upon appeal. 
 Eisenbud v. Gellet, 26 Misc., 367; s. c, 58 N. Y. Supp., 952; 
 Langer v. Murray, 123 N. Y. Supp., 165. 
 
 The appellant is bound by the recitals in the record. Man- 
 ning V. Ferrier, 27 Misc., 522; s. c, 58 N. Y. Supp., 332; 
 Smith V. Johnson, 30 How. Pr., 374. 
 
 Judge's certificate of time of rendering judgment is con- 
 clusive. Benson v. Gutterman, 33 Misc., 753; s. c, 67 N. Y. 
 Supp., 89. 
 
 Where there is an error in the clerk's return, the record 
 will prevail. Maggio v. Ocean View Cemetery, 94 N. Y. 
 Supp., 595. 
 
 There is no provision in the Municipal Court Act for the 
 procuring a further or amended return. Section 20 of that 
 Act, however, provides that the provisions of the Code of 
 Civil Procedure shall apply to the Municipal Court as far as 
 the same can be made applicable and are not in conflict there- 
 with. Section 3055 of the Code of Civil Procedure reads as 
 follows : 
 
 "If the return is defective, the Appellate Court may 
 direct the justice to make a further or amended re- 
 turn, as often as is necessary. The Appellate Court 
 may compel the justice, by attachment, to make and 
 file a return, or a further or amended return. The 
 court is always open for those purposes. Where the 
 justice has removed to another county of the State, 
 the Appellate Court may compel him to make the re- 
 turn, as if he was still within the county where the 
 judgment was rendered." 
 
Rules of the Appellate Term 19 
 
 As to practice in compelling justice to make return by at- 
 tachment, see Rule "IV." The motion should be promptly- 
 made. 
 
 The return can only be amended oy motion made therefor, 
 and not by way of affidavits handed up upon an appeal. 
 Daly V. Minke, 86 N. Y. Supp., 92. Affidavits to contradict 
 return of justice will not be considered on appeal. Long 
 Branch Pier Co. v. Crossley, 40 Misc., 249, at page 251; s. c, 
 81 N. Y. Supp., 905. Motion must be made upon affidavits. 
 Lynsky v. Pendegrast, 2 E. D. Smith, 43, and it should be 
 made before the appeal has been noticed for argument. 
 
 The error or omission in the return must be clearly shown. 
 Smith v. Johnson, 30 How. Pr., 374. 
 
 A motion for a further or amended return cannot be made 
 until the return has been filed. Such motion must be made 
 promptly, and before the case has been noticed for argument. 
 Noticing the case for argument, does not deprive the Court 
 of the power to cause a further or amended return to be 
 made, and when it is apparent that justice will be done there- 
 by, the Court will permit it to be done, even if it is on the 
 calendar and has been noticed for argument. Foley v. Alger, 
 4 E. D. Smith, 719; Matthews v. Fiestel, 2 E. D. Smith, 91. 
 Payment of costs, would undoubtedly be required, under such 
 circumstances, if leave were granted. To procure a further 
 or amended return, it must appear that the amendment 
 sought is material and important upon the issues brought up 
 for review. The return being conclusive upon the Appel- 
 late Court (see notes to Rule "III") , where a return has been 
 filed, both parties should be prompt to examine it, and if it 
 is incorrect promptly move for its correction. 
 
 When a motion is made for an amended return, the Court 
 will examine the matters in respect to which an amended re- 
 turn is sought, and the application will be refused as to what- 
 ever is irrelevant or immaterial to the questions presented 
 for view by the appeal. Onderdonk vs. Ranlett, 3 Hill., 323, 
 329. 
 
 Where it is evident that the judgment must be reversed, 
 even though the amendment is ordered the motion for an 
 amended return will be denied. Wightman v. Clapp, 2 
 Cow., 517. Also where by an examination of the return and 
 by the appellant's affidavits that the amendment sought is 
 incorrect in fact id. 
 
 The Appellate Term has no power to make an order com- 
 pelling a justice to "settle" a return. A justice can be com- 
 
20 Rules op the Appellate Term 
 
 pelled to file a return, which includes the settlement, but 
 such must be the application. Clement v. Whites Express 
 Co., Law Journal, Oct. 16, 1909, not reported. 
 
 In resettling a case, the justice may act on his own knowl- 
 edge as to what transpired at the trial. Jenkins v. Bishop, 
 117 N. Y. Supp., 630. 
 
 The Court can, of its own motion, order a return sent 
 back for correction. Baldwin v. Thibandean, 14 N. Y. Supp., 
 788; s. c, 39 St. Rep., 54. 
 
 The justice is liable for a false return, and for any dam- 
 ages which may be sustained; he acts ministerially. Mac- 
 Donnell v. Buffum, 31 How. Pr. 154. 
 
 The order will not direct the justice to return that such a 
 thing is true, or otherwise, but merely order him to supply 
 defects by stating whether the matter to which he is legally 
 called upon to return and to which he has omitted to answer 
 be true or false. Palmer v. Peck, 2 Cow en, 461; see also. 
 Prank v. Subin, 123 N. Y. Supp.. 890; Freeman vs. Peck, 
 L. J., Nov. 12th, 1910. 
 
 An amended return may be ordered requiring the justice 
 to answer specific interrogatories in regard to matters ma- 
 terial to the case. Smith v. Johnson, 30 How., 374. A party 
 may compel the return of evidence stricken out in the Court 
 below for the purpose of bringing before the Appellate Court 
 the points relied upon for a reversal, id. 
 
 The general rule that the Court is bound by the record pre- 
 sented on the appeal is subject to the qualification that the 
 Court may permit matters of record to be supplied to sup- 
 port the judgment. O'Day v. Hupfel Bwg. Co., 30 Misc., 460; 
 Dunford v. Weaver, 84 N. Y., 445; Dunham v. Townshend, 
 118 N. Y., 281; In re Transfer Case, 92 N. Y. Supp., 324. 
 
 Omission to introduce record evidence of incorporation of 
 an alleged corporation may be supplied on appeal in order 
 to support the judgment below. O'Day v. Hupfel Bwg. Co., 
 
 30 Misc., 460. 
 
 Court may take judicial notice of records before it in other 
 cases for the purpose of supporting a judgment. In re 
 Transfer Penalty Cases, 92 N. Y. Supp., 322, at p. 324. 
 
 Letter from justice presented after appeal had been argued 
 and submitted, correcting or amplifying a statement in the 
 record will not be considered. Rontenberg v. Schweitzer, 29 
 Misc., 653; s. c, 61 N. Y. Supp., 84. 
 
Rules op the Appellate Teem 21 
 
 A claim that former judgment is res adjudicata will not be 
 considered unless the judgment in the former action be- 
 tween the parties or a copy thereof appears in the record. 
 Orvis V. Curtis, 11 Misc., 418. 
 
 Affidavits — Attached to brief not considered. Guase v. 
 Sterling Piano Co., 95 App. Div., 115. 
 
 Before a return on appeal from a judgment can be filed it 
 must be settled by the trial justice. Frankel v. Smith, Law 
 Journal, November 5th, 1908; Anker v. Smith, 85 N. Y. 
 Supp., 1062. This does not apply to appeals from orders, 
 see Guttenberg v. Taibbi, post. 
 
 If the return shows that it was settled prior to the day 
 named in the notice of settlement, and objection is made that 
 the case was not settled after amendments thereto had been 
 submitted, the return will be remitted to the Lower Court for 
 proper settlement after notice. Hillman v. De Rosa, 90 
 N. Y. Supp., 409. 
 
 The return when settled and allowed by the justice and 
 filed, is conclusive upon appeal. Eisenbud v. Gilbert, 26 
 Misc., 367; 55 N. Y. Supp., 952; Manning v. Ferrier, 27 
 Misc., 522 ; 58 N. Y. Supp., 332 ; Foreman v. N. Y. Transpor- 
 tation Co., 95 N. Y. Supp,,581. 
 
 The rule regarding the making of a return upon an appeal 
 from an order of the Municipal Court, is fully laid down in 
 the following case. Law Journal, March 15th, 1910. 
 
 Supreme Court — Appellate Term. 
 
 By Mr. Justices Seabury, Lehman and Gavegan: 
 
 "Guttenbergh v. Taibbi and Antonio Genovese: The 
 judgment in this case was entered against the de- 
 fendants by default. A motion to open such default 
 was made and granted, the judgment vacated and set 
 aside, and a day fixed for trial. Subsequently the 
 plaintiff moved before another justice of the Municipal 
 Court for an order vacating the order opening the 
 defendants' default. This motion was granted, and 
 the clerk was directed to 'alter the records accord- 
 ingly.' The appellants claim that the direction con- 
 tained in the order made by the last justice was sub- 
 stantially the rendering of a new judgment; that the 
 Clerk of the Municipal Court so regarded it and 
 
22 Rules op the Appellate Term 
 
 made an entry in the docket book of a new judgment, 
 and this appeal is from such judgment and the order 
 directing its entry. The excuse offered by the appel- 
 lants for their failure to procure the return to be filed 
 herein is that they were unable to obtain the 'settle- 
 ment of the case' by the justice who heard the motion, 
 said justice insisting that the case on appeal must be 
 settled by the justice who rendered the judgment. We 
 know of no reason or authority requiring the so-called 
 'settlement of the case' of an appeal from an order. 
 There is no 'case' made upon the decision of a motion. 
 Section 318 of the Municipal Court Act provides that 
 'said justice shall * * * settle the case and ex- 
 ceptions, if any,' but that section applies to an action 
 tried after the joinder of issue, and obviously in such 
 a case the return must be settled by the trial justice. 
 So, also, where a motion is made under section 255 of 
 that act for a new trial, upon the ground of a newly 
 discovered evidence, there must be a case settled by 
 the trial justice ( Altmark v. Hamowitz, 55 Misc., 195 ; 
 105 N. Y. Supp., 205; Harris v. Gregg, 4 App. Div., 
 618; Scott V. Smith, 133 App. Div., 190; 17 N. Y. 
 Supp., 455; Davis v. Grand Rapids Fire Ins. Co., 5 
 App. Div., 615. But in such cases the return is settled 
 before the motion is made, and the settled case comes 
 before this court upon the appeal together with the 
 other motion papers used thereon. Subdivision 6 of 
 section 282 of the Municipal Court Act declares that 
 one of the duties of the clerk of that court is to 'au- 
 thenticate by certificate or exemplification, as may be 
 required, the records or proceedings of the court, or 
 any other papers appertaining thereto filed with him.' 
 This confers upon the clerks of that court ample power 
 to certify to the correctness of papers used upon mo- 
 tions and filed in their offices. In a case of a motion 
 to open a default, heard by a justice sitting in 
 the district where the case was tried, if the motion 
 was based upon all the papers and proceedings in the 
 action as well as upon other affidavits, the original 
 papers there on file may be used upon such motion. If 
 the minutes of the trial are used upon a motion their 
 correctness may be challenged in the same way as any 
 other question of fact is put in issue. If the motion 
 is heard elsewhere than in the district where the 
 judgment was obtained, and where the papers are on 
 file, certified copies of the filed papers should be ob- 
 tained for use upon the hearing. The papers used 
 
Rules op the Appellate Term 23 
 
 upon the hearing should be filed in the office of the 
 clerk where the motion is heard, and when an appeal 
 is taken from the order entered the return should con- 
 sist of those papers, properly certified by the clerk as 
 being the papers on file in his office. It would seem 
 that certified copies in lieu of the originals on file 
 might be sent up if desired by the appellant, the 
 clerk's certificate as to the papers being originals or 
 true copies thereof being sufficient to enable this 
 court to review the same upon appeal. The practice 
 herein indicated will simplify the procedure in cases 
 of appeals from orders, and save the time that has 
 heretofore been taken in locating the justice who heard 
 the motion, who, owing to the system of rotation in 
 that court, may be sitting in a district other than the 
 one in which the motion was heard. Motion to dis- 
 miss appeal denied upon condition that the return be 
 filed at least ten days before the first day of the next 
 term." 
 
 Upon appeals from judgments the following opinion sets 
 forth the rule to be observed: 
 
 Supreme Court — Appellate Term. 
 
 By Mr. Justices Seabury, Lehman and Page: 
 
 "Goldenberg v. Adler (per Curiam). The plaintiff 
 appeals from a judgment dismissing his complaint and 
 in the notice of appeal states that he intends to bring 
 up for review several orders made in the lower court. 
 The record contains a stipulation signed by plaintiff's 
 attorney, and by an attorney who, it seems, appeared 
 for the defendant upon one or more of the motions 
 which resulted in one or more of the orders appealed 
 from, to the effect that the minutes had been read and 
 were correct. Thereupon the Clerk of the Municipal 
 Court endorsed thereon these words, 'Settled and al- 
 lowed by consent. Dated March 25, 1910,' and the 
 clerk also certified that 'the affidavits and orders an- 
 nexed hereto are all the originals used on the hear- 
 ing of the proceedings on the order appealed from, as 
 well as the exhibits used therein.' This certificate, so 
 far as it affects the return upon appeal from the or- 
 ders, would be sufficient to enable this court to review 
 upon appeal such of the orders as are appealable, if 
 the appeal herein had been taken directly from the 
 orders alone; but the consent of the parties that a case 
 
24 Rules of the Appellate Term 
 
 may be settled and allowed cannot be substituted for 
 the statutory requirement of a settlement and allow- 
 ance by the trial justice upon an appeal from a judg- 
 ment (Middleman v. Stevenson et at, 113 Supp. 762). 
 The justice might have made the proper indorsement 
 upon the record, based upon the consent of the attor- 
 ney as to its correctness, but the consent of attorneys 
 in lieu thereof is insufficient. Appeals from judg- 
 ments must be settled and allowed by the trial justice, 
 either upon notice or upon consent (sec. 319, Mun. 
 Ct. Act). Appeals from orders may be heard upon 
 returns properly certified, as stated in Guttenberg v. 
 Taibbi (Law Jour., March 15, 1910). It follows that 
 the return must be remitted to the lower court for 
 settlement of that portion of the same relating to the 
 judgment." 
 
 After a case is upon the calendar, the respondent cannot 
 move to dismiss for failure to prosecute, or for failure to file 
 and serve briefs, unless he has served and filed a notice of 
 argument. 
 
 In all motions made under this rule, five (5) days' notice 
 must be given, or an order to show cause obtained, but an 
 order to show cause will not be granted, if there is time in 
 which to give the required five (5) days' notice, and said mo- 
 tion must be made returnable upon the first day of the term. 
 The moving papers, with proof of service and a notice of 
 issue must be filed with the clerk of the Appellate Term, on 
 the Friday preceding the first day of the term. (See Notes 
 to Rule "VIII," post.) The Appellate Term usually makes 
 and files its own orders. See Rule "VIII," post. 
 
 What the moving papers should contain are set forth in 
 the opinion of the Appellate Term in Kramer v. Colkin, Law 
 Journal, December 10th, 1909, in substance as follows: 
 
 "A notice of motion to dismiss an appeal must be 
 accompanied by an affidavit setting forth the date of 
 rendition of the judgment, or the making of the order 
 appealed from, the amount of the judgment, if the ap- 
 peal is from a judgment; in what court the judgment 
 was rendered or the order made, and if it is an appeal 
 from the City Court the time when the case on appeal 
 was settled, the date of service of the notice of appeal, 
 and in addition thereto, the necessary facts upon 
 which it is claimed the appeal should be dismissed." 
 
Rules of the Appellate Teem 25 
 
 It sometimes happens that the stenographer's minutes of 
 the trial are lost; exhibits are missing and cannot be found 
 or for some reason the justice is unable to make a complete 
 return of "all the proceedings, etc.," as provided for by 
 Section 317 of the Municipal Court Act, and that the re- 
 turn is incomplete in some respects. In such a case the 
 appellant should cause so much of the return as can be made 
 by the trial justice to be settled and filed, and supplement the 
 same, by affidavits, showing what occurred at the trial. 
 Sec. 319, Mun. Ct. act. Gottlieb v. Fine, Law Journal, De- 
 cember 10th, 1909; Walker v. Baerman, 44 App. Div., 587; 
 s. c, 61 N. Y. Supp., 91 ; McGovern v. Eldridge, 48 St. Rep., 
 692 ; Austen v. Columbia Lubricant Co., 85 N. Y. Supp., 362. 
 
 The original affidavits should then be filed with the other 
 portion of the return, with the Clerk of the Appellate Term, 
 at least ten (10) days before the first day of the term and 
 copies served upon the respondent's attorney at least eight 
 (8) days prior thereto. The answering affidavits must be 
 filed on or before the first day of the term and copies of the 
 same need not be served upon the appellant. The Court is 
 averse to determining appeals upon affidavits, and unless it 
 clearly appears that the judgment should be affirmed or re- 
 versed, the case will be sent back for a new trial. Kirsch v. 
 Halbach, 120 N. Y. Supp., 740; Gfottlieb v. Fine, 121 N. Y. 
 Supp., 236. 
 
 The motion to dismiss an appeal for failure to file the re- 
 turn will not be granted absolutely, but more time given, if 
 the appellant shows that he has exercised due diligence, in 
 his efforts to procure it to be filed. The opposing affidavits 
 must be full and should set forth in detail the steps taken to 
 obtain the return, and not mere conclusions. They should 
 show the prompt ordering of the minutes from the stenog- 
 rapher and payment of the fees therefor. Section 317 of the 
 Municipal Court Act declares that the minutes must be fur- 
 nished to the clerk by the stenographer within ten (10) days 
 after the fees therefor have been paid. Rule 17 of the 
 Municipal Court Rules requires that the fee of the stenog- 
 rapher for a transcript of his minutes, pursuant to Section 
 317 of the Municipal Court Act, "shall be deposited with the 
 clerk of the district where the action or proceeding is pend- 
 ing, who, upon the filing of the transcript shall deliver the 
 money deposited to the stenographer." If this rule was 
 strictly enforced, less delay in obtaining the minutes would 
 undoubtedly result. The almost universal excuse urged by 
 the appellant upon a motion to dismiss for failure to file the 
 return is the inability to obtain a transcript of the minutes 
 from the stenographer, although payment therefor has been 
 
26 KuLEs OP THE Appellate Term 
 
 made; in such a case an aiRdavit of the stenographer should 
 be obtained, showing a reason for the delay, and if a valid 
 reason exists it will have great weight with the Court in 
 excusing the appellant. 
 
 Payment of the fees for transcribing the minutes, direct 
 to the stenographer is no excuse for failure to file the return. 
 Nickel vs. George Schleischer Co., L. J., Jan. 3d., 1911. 
 
 An appeal will not be dismissed because a return is de- 
 fective. Derrick v. Kelly, Law Journal, February 4th, 1909. 
 The proper practice being to move for a further or amended 
 return. 
 
 Failure to file the return does not entitle the respondent 
 to a dismissal absolutely. It is for the Appellate Term to 
 determine whether such failure is negligent or not. Pakas 
 vs. Hurley, 114 Supp., 140. 
 
 In appeals from the City Court, when motions to dismiss 
 are made, if the respondent has excused his delay, ten days' 
 time is given in which to comply with the rule. If it appears 
 from the moving papers that the appellant has been negli- 
 gent in preparing the case on appeal or in filing the printed 
 papers, costs are imposed as a condition for permitting the 
 appeal to be perfected. 
 
 In most cases where motions are made to dismiss appeals 
 for failure to cause the return from the Municipal Court to 
 be filed, the Court grants the motion, unless the appellant 
 causes the return to be filed at least ten (10) days before 
 the first day of the next term. The time is fixed at ten (10) 
 days so as to enable the respondent to give the required eight 
 (8) days' notice of argument after the return is filed, and 
 placed upon the calendar. Where negligence in not causing 
 the return to be filed is shown, costs are also imposed, pay- 
 ment of which as a condition for filing the return, must be 
 made. 
 
 If the appellant cannot, for any sufiicient reason, comply 
 with the order, he should move promptly, and before he is 
 in default, for an order extending his time. This may be 
 done either by an ex parte order or by an order to show 
 cause. Aji ex parte order extending the time in which to 
 serve and file a case, or the printed papers, upon an appeal 
 from a judgment or order of the City Court, or the return 
 from a judgment or order of the Municipal Court will not 
 be granted, where the effect of such extension of time will 
 
Rules op the Appellate Term 27 
 
 be to put the case over the term next succeeding the grant- 
 ing of the order. 
 
 On an application to open a default, it is necessary not 
 only to show good grounds for the delay, but also satis- 
 factory reasons why an application for an extension of time 
 was not made before the time expired. Gamble vs. Lennon, 
 
 9 A. D., 407. 
 
 The order on decisions on motions is filed as soon as the 
 decision upon the motion is made. 
 
 Service of a copy of the order is not necessary, nor is notice 
 of its entry essential to be given, in order to obtain a dis- 
 missal of the appeal for failure to comply with its terms. 
 
 If the appellant fails to comply therewith, the order oper- 
 ates as a dismissal. Mahon v. Mahon, 64 App. Div., 262; 
 72 N. Y. Supp., 102. 
 
 Such orders are granted as a favor upon conditions and 
 the party favored must not wait for service upon him of a 
 copy of the order. Willink v. Renwick, 22 Wend., 608; Ros- 
 enberg V. A. M. Eisenburg Co., Motion, April Appellate 
 Term, 1905; Levenson v. Rabinowitz, Law Journal, March 
 28th, 1908, p. 666. 
 
 Ex parte orders, dismissing appeals upon consent, or for 
 failure to comply with a former order, when handed up for 
 signature, must be accompanied by a copy for certification by 
 the Clerk to accompany the return to the Lower Courts. 
 
 The costs, if any are imposed, must be paid within the 
 time specified in the order or if no time is named then with- 
 in 10 days thereafter, or the appeal will be dismissed. If 
 such costs are not paid the respondent may obtain an ex parte 
 order dismissing the appeal for failure to pay the same. 
 
 Costs imposed by the Appellate Term must be paid within 
 
 10 days after entry and notice of entry of an order impos- 
 ing the same, or the party who is required to pay them will 
 be stayed by the provisions of section 779 of the Code of 
 Civil Procedure. 
 
 "The respondent moves to dismiss the appeal herein for 
 failure of the appellant to file its brief. The appellant claims 
 that the respondent is stayed from making this motion by 
 reason of non-payment of the costs of a former motion. The 
 facts are not disputed. At the March term of this court a 
 motion was made by the respondent herein to dismiss this 
 
28 Rules of the Appellate Teem 
 
 appeal, which motion was denied with $10 costs. The order 
 was entered on March 9th, and served on March 10th, 1910, 
 These costs have never been paid. On March 17, 1910, the 
 appellant served a notice of settlement of the case on appeal 
 in the lower court. This act, it is claimed by the respond- 
 ent, constituted a waiver of any stay which may have exist- 
 ed for the non-payment of costs. The order above stated 
 made no provision as to the time in which the costs, then 
 imposed should be paid and therefore the respondent had 
 ten days in which to make such payment. "The stay of 
 proceedings provided by section 779 of the Code of Civil 
 Procedure begins only from the default of the party in not 
 paying the costs. If no time is specified in the order then the 
 default does not exist until ten days have elapsed. Marks v. 
 King, 66 How. Pr., 452. The respondent was therefore not 
 in default until March 20, 1910, and no stay could become 
 operative until after the expiration of that time. Conse- 
 quently the appellant by making this motion on March 17, 
 1910, cannot be said to have waived any stay as at that 
 time there was no stay in existence." R. S. S. Co. v. Apfel, 
 April 7, 1910, not reported. 
 
 This Rule does not apply to motions to dismiss appeals 
 upon grounds other than failure to prosecute, nor motions 
 made prior to the return being actually upon the calendar. 
 After notice of appeal is served, the Court is so far possessed 
 of jurisdiction as to make any necessary order. Adams v. 
 Fox, 27 N. Y., 640. 
 
 RULE IV. 
 
 Attachment — Motion For. 
 
 If the Justice of the Municipal Court whose duty- 
 it is to cause a return to be filed with the Appellate 
 Term shall not make such return within the time pre- 
 scribed by Section 317, Chapter 580 of the Laws of 
 1902, (the Mun. Act) either party may move the 
 Appellate Term, upon notice to the attorney for the 
 adverse party and to such justice to compel such re- 
 turn by attachment. 
 
Rules of the Appellate Term 29 
 
 NOTES. 
 
 This rule is new, having been taken from Rule "III," and 
 now inserted in place of former Rule "IV," which has been 
 incorporated in Rule "VII." 
 
 There are two methods of procedure under this rule: 1st, 
 by obtaining an order to show cause why an attachment 
 should not issue, and, 2nd, by the issuing of an attachment, 
 compelling the justice to file the return in the first instance. 
 If the Court is asked to issue an attachment in the first in- 
 stance, proof that a notice requiring the justice to make and 
 file the return has been served upon him should be shown 
 in the appellant's moving affidavit. Such notice may be in 
 the following form: 
 
 SUPREME COURT, 
 Appellate Term. 
 
 John Roe, 
 
 against 
 
 Richard Doe. 
 
 To , Justice of the Municipal Court, 
 
 District, Borough of 
 
 Sir: 
 
 You will take notice, that you are hereby required to make 
 and file the return in the above entitled action within ten 
 (10) days from the service of this notice upon you. That the 
 appeal was taken from a judgment rendered by you in said 
 action on the day of , 191 , in favor of 
 
 , plaintiff, against , de- 
 
 fendant, for the sum of $ , damages, and $ , 
 
 costs; that the notice of appeal was filed in the Clerk's office 
 of the District, Municipal Court, Borough of , 
 
 on the day of , 191 . That in default of your 
 
 making such return, an attachment will be applied for 
 against you. 
 
 Dated, New York, 
 
 Yours, etc.. 
 
 Appellant's Attorney, 
 &c. , 
 
30 Rules of the Appellate Term 
 
 It is extremely doubtful if the Court would issue an attach- 
 ment compelling a Justice to make a return, in the first in- 
 stance. The prudent procedure would be to obtain an or- 
 der to show cause why an attachment should not issue. This 
 order should be based upon affidavits showing when the judg- 
 ment was rendered, when the appeal was perfected, pay- 
 ment of the stenographer's fees to the Clerk of the Court, 
 and the efforts that have been made to procure the return. 
 This order, with a copy of the affidavits upon which it is 
 founded, must be served upon the Justice and upon the at- 
 torney for the adverse party, or if he has no attorney, upon 
 the party, and the service in both cases should be personal, 
 and service upon the Justice should be made by delivering 
 a copy to the Justice personally, and at the same time show- 
 ing him the original order, and such service must be made 
 within the time specified in the order. The Court is always 
 open for the hearing of such motions, and an application for 
 an order to show cause may be made at any time. If upon 
 the return of the order to show cause the Justice shows suf- 
 ficient excuse for the failure to file the return, the motion 
 will be denied. If he fails to file answering affidavits, or 
 shows no good reason for his neglect, or refusal, an attach- 
 ment will be issued. The same right to an attachment ex- 
 ists to enable a party to procure a further or amended re- 
 turn, and when the return has been sent back for a further 
 or amended return, and such return is not properly made, 
 a party may proceed by attachment to cause it to be filed. 
 
 Should an attachment be granted, the further proceed- 
 ings are provided for in the Judiciary Law, Sec. 754 to Sec. 
 797 inc. 
 
 RULE V. 
 
 The cases and points and all other papers furnished 
 to the Appellate Term on an appeal from the City- 
 Court shall be printed as provided for in Rule 43 of 
 the General Rules of Practice. The points on an ap^- 
 peal from the Municipal Court shall be printed as 
 therein provided or typewritten. In every case on ap- 
 peal from the City Court or the Municipal Court the 
 appellant must, on or before the Monday preceding 
 
Rules op the Appellate Term 31 
 
 the first day of the term at which the appeal is no- 
 ticed for argument, file with the clerk of the Appellate 
 Term the requisite number of copies of his points to 
 be used upon the hearing, indicating thereon the num- 
 ber of the appeal on the calendar published in the Law 
 Journal, and shall also, on or before the Monday pre- 
 ceding the first day of said term, serve a copy of said 
 points upon the attorney for the respondent. Upon 
 failure so to do the appeal may, when called for argu- 
 ment in its regular order on the calendar, be dismissed 
 or the hearing thereof adjourned to the next term, as 
 the court may determine. Not later than twelve 
 o'clock noon on the Saturday preceding the first day 
 of the term the respondent must serve a copy of his 
 points upon the attorney for the appellant or upon 
 the appellant's counsel, and file with the clerk the 
 requisite niunber of copies thereof to be used upon 
 the argimient, said copies also to contain the number 
 of the case upon the calendar as published in the Law 
 Journal. No further time for filing points will be 
 granted and no other points will be received or con- 
 sidered 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 filed with the clerk of the Appellate 
 Term on or before the Monday preceding the first 
 day of the term. All appeals must be heard or sub- 
 mitted when regularly called for argument, unless the 
 court, for cause shown, shall adjourn the hearing until 
 a subsequent term ; and no appeals shall be submitted 
 without argument unless the points have been filed 
 and served as hereinbefore provided. In the argument 
 of an appeal from an order or from a judgment of 
 the Municipal Court not more than fifteen minutes 
 shall be occupied by counsel on either side; and in 
 
32 Rules of the Appellate Term 
 
 the argument of an appeal from a judgment of the 
 City Court not more than thirty minutes shall be oc- 
 cupied by counsel on either side, except by express per- 
 mission of the court. 
 
 NOTES. 
 
 Under this rule, the case upon appeal from a judgment of 
 the City Court, the papers used in the Court below on a 
 motion resulting in an order of the City Court appealed 
 from, and the briefs, must be printed according to Rule 4.S 
 of the General Rales of Practice, if not, it may be stricken 
 from the calendar. Reid v. Mayor, 50 N. Y. St. Rept., 758. 
 
 Under new Rule 43 printed appeal papers are to contain 
 an index in front thereof; the index of exhibits is to indi- 
 cate concisely the contents and nature of each exhibit; the 
 index is also to contain a reference to the folios at which a 
 motion for a dismissal or direction is contained. At the top 
 of each page of the case the name of the witness, the party 
 calling him, and the words "direct," "cross" or "re-direct" 
 shall be printed. Each affidavit or other paper is to be pre- 
 ceded by a description thereof; the name of the affiant is to 
 be printed at the top of each page containing an affidavit; 
 and on an appeal from an order upon a motion to strike out 
 or make more definite and certain the portion of the plead- 
 ing questioned is to be printed italics (report of November 
 1, 1909, p. 18). 
 
 The printing of a large portion of the record in italics, so 
 as to emphasize the passages most favorable to either of 
 the parties is objectionable, and being a violation of the rule, 
 the Court may require the substitution of a properly print- 
 ed case. Campbell v. Jughault, 50 App. Div., 460. Fuchs 
 v. Sweeney Mfg. Co., 12 N. Y. Supp., 870. This rule applies 
 to briefs as well as cases. 
 
 Ten (10) copies of the printed case and printed papers 
 and ten (10) copies of the briefs upon appeal from judg- 
 ments and orders of the City Court must be filed with the 
 Clerk of the Appellate Term. In appeals from judgments 
 and orders of the Municipal Court, three (3) copies of the 
 briefs are required. 
 
 Briefs upon an appeal from the Municipal Court need 
 not be printed but may be typewritten. They should all be 
 originals and not carbon copies. The appellant must file 
 with the Clerk of the Appellate Term the required number 
 of copies of his brief, and serve a copy upon his adversary 
 on or before the Monday preceding the first day of the term 
 
Rules of the Appellate Term 33 
 
 at which the appeal is noticed for argument. The appellant, 
 when he files his brief, must pay the Clerk a calendar fee of 
 $1. 
 
 Another portion of the rule is of equal importance and 
 must be observed, viz: "No appeal will be heard or received 
 on submission, unless it has been noticed for argument, and 
 proofs of service thereof filed with the Clerk of the Ap- 
 pellate Term, on or before the Monday preceding the first 
 day of the term." A notice of argument served less than 
 the statutory time is void and need not be returned. Wal- 
 ker V. Chilson, 20 N. Y. Supp., 527. 
 
 "The return herein was filed in time to enable either party 
 to serve a notice of argument for the May term. Neither 
 party made such service. The appellant made an attempt 
 to serve one on the 1st day of April, 1909. This Court can- 
 not violate the provisions of the statue by requiring the 
 respondent to accept a notice of argument concededly not 
 served in time." Powelson v. Warner, Motion, Law Journal, 
 May 1st, 1909, not reported. 
 
 Unless respondent serves and files a notice of argument 
 in time he has no standing in Court, and can neither move 
 the case nor oppose nor object to a postponement of the 
 hearing, nor will the judgment be affirmed (see notes under 
 Rule "VI"). 
 
 "The second ground upon which the notice is founded, 
 namely, want of prosecution, is untenable. The appellant is 
 bound only to file the return and serve the printed case. The 
 respondent, if he wishes to expedite the case can himself 
 put it upon the calendar and g:ive notice of argument." 
 Hand v. Callahan, 12 Misc., 88. 
 
 The clerk marks opposite each case on the calendar the 
 words, respondent's or appellant's "notice of argument and 
 proof of service filed" as the case may be, and unless this 
 marking appears the case will not be called by the Court. 
 The case, will, however, remain upon the calendar, and ap- 
 pear at the next term under a new number. An appeal from 
 the Municipal Court, after being on the calendar for three 
 (3) terms, will be dismissed by the Court. Section 325 of 
 the Municipal Court Act. If the appellant fails to serve and 
 file a notice of argument, and fails to appear upon the call of 
 the calendar, the judgment will be affirmed, if the respondent 
 has served a notice of argument; see Rule "VI." If the re- 
 spondent fails to file and serve his briefs, the appeal may be 
 heard upon the appellant's brief alone if the appellant has 
 served and filed a notice of argument. 
 
34 Rules of the Appellate Term 
 
 If the respondent has served and filed a notice of argu- 
 ment and the appellant has neither served nor filed a notice 
 of argument and briefs, the appeal will be dismissed, leav- 
 ing the appellant to move to open and excuse his default, and 
 to restore the appeal, he being thereby subjected, if such re- 
 lief is granted, to payment of costs of dismissal and costs of 
 the motion to open his default. A motion to dismiss the 
 appeal for failure to file briefs will not be entertained unless 
 the respondent has served and filed a notice of arg^ument. 
 If both parties have served and filed a notice of argument, 
 and the appellant has failed to file briefs, the respondent 
 may, upon the call of the calendar move to dismiss the ap- 
 peal and unless the Court then permits the appellant to serve 
 his briefs, the appeal will be dismissed, or put over the term ; 
 in the last event, costs will be imposed. 
 
 Appeals from orders of the City Court are called first. 
 Then the appeals from judgments of the City Court are 
 called. The Court opens at 10 o'clock A. M., and appeals 
 from orders and judgments are called at the opening of 
 Court on the first day. Appeals from the Municipal Courts 
 are called at 10 o'clock A. M. the second day of the term. 
 Cases answered ready will be so marked for oral argu- 
 ment. Any case may be submitted by the parties either be- 
 fore or upon the call of the calendar or afterwards, al- 
 though it has previously been marked "Ready." See also 
 notes under Rule "VI." 
 
 At the conclusion of the call of the calendar, the first 
 case marked "ready" will be again called, at which time the 
 oral argument must be proceeded with, or the case must be 
 submitted without argument. No postponement of the ar- 
 gument will be granted, and the engagement of counsel in 
 another court is not an excuse for a postponement of the 
 argument. The rule is imperative that a case when reached 
 must be argued or submitted, unless it is put over the term. 
 
 Briefs should always be furnished in aid of the Court. 
 
 "A party has no right to expect the Court to be 
 laborious in their investigation or ingenious in their 
 endeavor to support a judgment when his own coun- 
 sel is either unwilling or unable to aid them by any 
 suggestions or examinations of authorities on his be- 
 half." Agreda v. Paulberg, 3 E. D. Smith, 178-179. 
 
Rules of the Appellate Term 35 
 
 The attention of the Court should be directed by the ap- 
 pellant to such features of the case as he claims demand the 
 reversal. If this is not done, the Court may refuse to ex- 
 amine the question. Nelson v. Village of Canesteo, 100 N. 
 Y., 89. 
 
 Reply briefs are not permitted under the rule unless the 
 same are requested by the Court. If the appellant is allowed 
 to file a reply brief it is usually upon condition that he sub- 
 mit the appeal without argument. 
 
 Oral arguments are limited to thirty (30) minutes for 
 each side on appeals from the City Court, and fifteen (15) 
 minutes for each side on appeals from the Municipal Courts. 
 As a rule, oral arguments are of little value. 
 
 Usually, attorneys, in arguing an appeal, attempt to lay 
 before the Court all the facts in the case, and the oral 
 statements of counsel in reference thereto are generally so 
 diametrically opposed as to be of little or no value in de- 
 termining the appeal, and the time of the Court is wasted 
 in hearing them. When the questions of fact have been 
 tried in the Court below, upon the evidence there adduced, 
 and there is material and relevant evidence given upon both 
 sides, the decision of the questions of fact will usually be 
 regarded as final. No principle of law is more fully settled 
 than this, and none has been more frequently and invariably 
 enforced. The reason for the rule is obvious. 
 
 When a trial takes place upon a question of fact, and wit- 
 nesses are sworn, the Justice or the jury who sees the wit- 
 nesses and hears the evidence and the language, and observes 
 the demeanor of the witnesses, are much better able to prop- 
 erly estimate the value of the evidence, than any Appellate 
 Court can be, when it knows nothing of the case, except what 
 appears upon the printed record. 
 
 Again, the law confides the decision of questions of fact, 
 to a Justice or a jury, as the parties may elect, and when 
 such questions of fact have been fully heard and decided 
 upon the evidence, the intention of the law is to hold this 
 decision conclusive, so far as it determines the questions of 
 fact. If the judgment is erroneous because of improper rul- 
 ings made by the Court during the trial, or for any other 
 cause the judgment is illegal, that presents a different ques- 
 tion, which is a question of law. There are undoubtedly 
 many cases where injustice is done by holding the decision 
 of a Justice or a jury conclusive upon a question of fact, but 
 this result is inevitable, for no means can be derived which 
 will prevent a liability to errors of judgment, so long as 
 Justices and jurors are fallible. The language of Mr. Justice 
 
36 Rules of the Appellate Teem 
 
 Jenks in Azzara v. Nassau Electric Ry. Co., 118 N. Y. Supp., 
 830 is peculiarly appropriate upon the advantage a Trial 
 Court has over an Appellate Court: 
 
 "The Justice presiding at Trial Term has a peculiar 
 advantage over the Court sitting as an appellate tri- 
 bunal in determining whether a verdict is or is not 
 contrary to the weight of evidence. He hears the tes- 
 timony of the witnesses as it falls from their lips in 
 response to questions addressed to them. He can see 
 their manner upon the witness stand. He can hear 
 the very inflections which are given to answers to 
 questions. He can note whether the testimony is given 
 carefully and with apparent sincerity, or hesitatingly 
 and with an apparent desire to evade and equivocate, 
 when interrogated respecting matters which might 
 seem to the witness to be unfavorable to the party who 
 had called him. The appellate justices are deprived 
 of many of these opportunities. The evidence reaches 
 their minds only through the medium of the eye, after 
 it has been reduced to narrative form and is present- 
 ed on a printed page. They are not assisted by the 
 ear at all. Almost always there is an atmosphere 
 which surrounds a trial before a jury which enables 
 the trained mind instinctively, and perhaps without 
 being able to give a logical reason therefor, based 
 upon an analysis of the evidence, to determine whether 
 witnesses are speaking accurately and truly or mis- 
 takenly and falsely. The trial justice breathes this 
 atmosphere. The appellate justices are to a great 
 extent deprived of it." 
 
 It follows, therefore, that unless the judgment appealed 
 from is clearly against the weight of evidence, so much so 
 as to indicate prejudice, passion, partiality or fraud, the 
 decision of the Court upon questions of fact will be sustained, 
 and any oral argument directed to the question of fact in- 
 volved is of but little aid to the Court. 
 
 The record in each case is always examined with great 
 care and with a view to ascertain if the points raised by 
 the appellant in his brief, and urged as a ground for re- 
 versal, are well founded; the briefs, especially of the ap- 
 pellant should, therefore, be directed to pointing out only 
 the alleged errors of law, committed in the lower Court, as 
 being sufficient to warrant a reversal. It should be remem- 
 bered that the presumptions are always in favor of the regu- 
 larity and legality of the judgment. Every reasonable and 
 warrantable intendment is to be indulged in favor of a judg- 
 
Rules of the Appellate Term 37 
 
 ment, ana it will not be disturbed unless the decision could 
 not reasonably have been made. Seeley v. Lake Shore & 
 M. Ry. Co., 122 N. Y. Supp., 216, and the appellant must 
 point out reversible error, or the judgment will be affirmed. 
 The citation of authorities relied upon, should be full and 
 germane to the point. 
 
 The Court will not reverse a judgment for errors not point- 
 ed out in the appellant's brief, unless it is clearly apparent 
 that great injustice has been done a party and that the 
 interests of justice clearly demand a new trial. 
 
 In appeals from the Municipal Courts, great latitude is 
 given the Appellate Court, in order that justice may be 
 done, even though errors may have been committed upon 
 the trial, and it is not every such error that will furnish 
 ground for a reversal of the judgment appealed from. Those 
 errors that do not affect the merits of the controversy are 
 to be disregarded by the Court. The statute expressly gives 
 the Court power to render judgment according "to the jus- 
 tice of the case." Sec. 326, Mun. Ct. Act. There must al- 
 ways be an end to litigation and its prompt termination is 
 often of more benefit to a litigant than if after many trials 
 he is finally successful. 
 
 When a case is reversed, an opinion is always written, un- 
 less it is reversed upon the authority of another case, in 
 which event the basic case is cited. If the judgment is af- 
 firmed, it is seldom an opinion is necessary, and such judg- 
 ments are usually affirmed without opinions. 
 
 RULE VI. 
 
 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 respon- 
 dent fails to appear, the appellant may either argue, or 
 submit his case, but judgment of reversal by default 
 will not be allowed. 
 
 NOTES. 
 
 If the appellant has served and filed a notice of argument, 
 and has filed and served his briefs, and does not answer when 
 the case is called, it will be marked "submitted" by the Court, 
 
38 Rules op the Appellate Term 
 
 the filing of the briefs being regarded as an appearance on 
 the part of the appellant. At any time after the case ap- 
 pears upon the calendar, parties may, by stipulation, have 
 the case marked "submitted" by the clerk and thus avoid the 
 necessity of appearing upon the call of the calendar. In such 
 cases, the briefs must be filed in accordance with Rule "V." 
 If the appellant has filed no briefs, and answers when the 
 case is called, the appeal will be dismissed, if the respond- 
 ent has served and filed a notice of argument, otherwise, 
 the respondent cannot oppose the postponement of the case 
 by the appellant. (See notes under Rule "II.") If the ap- 
 pellant shows good reasons for failure to serve and file his 
 briefs, the case will be put over the term, on payment of 
 costs, or if the respondent consents to accept the appellant's 
 briefs the case may be submitted and the respondent will be 
 given time to file his briefs. 
 
 No Judgment of reversal by default will be allowed. 
 
 RULE VII. 
 
 Application for Leave to Appeal — Reargument, 
 Motion for. 
 
 Motions for reargument Eind applications for leave 
 to appeal from a determination of the Appellate Term 
 to the Appellate Division under Section 1344 of the 
 Code of Civil Procedure must be made upon written 
 notice to the adverse party on the first day of the 
 term next succeeding the term at which the case was 
 decided. Such motions and applications must be based 
 upon an affidavit or a statement setting forth con- 
 cisely the points claimed to have been overlooked or 
 misapprehended by the court, with proper reference 
 to the authorities relied upon, and the reason why 
 such reargument should be granted or appeal allowed, 
 together with a copy of the opinion, if any. The briefs 
 may be either printed or typewritten. All motions 
 and applications must be submitted without oral argu- 
 ment. 
 
Rules of the Appellate Term 39 
 
 An appeal to the Appellate Division from an order 
 granting a new trial will not be allowed unless the ap- 
 pellant files with his notice of application for leave to 
 appeal a stipulation that if the order appealed from be 
 affirmed, or the appeal therefrom dismissed, judgment 
 absolute may be rendered against him. 
 
 A party desiring an order staying proceedings pend- 
 ing a motion for reargument or an application for 
 leave to appeal must serve the notice provided for in 
 this rule. Upon an affidavit showing the service of 
 such notice, a copy of the moving papers and a state- 
 ment in such affidavit setting forth the reasons why a 
 stay shovdd be granted, an application for a stay will 
 be entertained. Application for such an order must 
 be made to the Justices of the Appellate Term who 
 heard the appeal or one of them, by presenting the 
 same to the clerk of the Appellate Term, by whom it 
 will be brought to the attention of the court. 
 
 NOTES. 
 
 This rule is composed of former Rule IV and also the pro- 
 visions of an Appellate Term rule prescribing the practice 
 to be followed when a stay of proceedings pending the hear- 
 ing of a motion for re-argument or .for leave to appeal is 
 desired. The rule requires that all motions for re-argument 
 or leave to appeal must be based upon a notice of motion or 
 an order to show cause, and the return day of the motion 
 must be the first day of the term next succeeding the one 
 at which the decision was rendered. 
 
 No order to show cause why a re-argument should not be 
 had, or leave to appeal be granted, will be signed when there 
 is sufficient time between the date the decision was announced 
 and the first day of the succeeding term in which to give the 
 required five (5) days' notice. The notice of motion must 
 be served at least five (5) days prior to the 1st day of the 
 term, and must be accompanied by an affidavit or a state- 
 ment showing "the points claimed to have been overlooked 
 or misapprehended by the Court with proper reference to 
 authorities." The reasons for granting the relief asked for 
 in the motion must be set forth. A copy of the opinion, if 
 
40 Rules op the Appellate Term 
 
 any, must also be furnished by the moving party. The briefs 
 may be either printed or typewritten. If the decision was 
 handed down less than five (5) days prior to the first day of 
 the next term, an order to show cause why a re-argunient 
 or leave to appeal should not be granted, may be obtained. 
 
 The notice of motion with proof of service and a note of 
 issue must be filed with the Clerk of the Appellate Term 
 on the Friday preceding the first day of the term for which 
 the motion is noticed, and will be placed upon the motion 
 calendar and published in the Law Journal on the Saturday 
 morning thereafter. 
 
 The opposing papers, if any, must be handed up on or 
 before Monday, 12 o'clock, noon of the first day of the term 
 and briefs of either party may be submitted on the same 
 day at or before 12 M. 
 
 Unless the moving papers with proof of service and a 
 note of issue is filed with the Appellate Term Clerk, as 
 aforesaid, the motion will not appear upon the calendar 
 and upon proof that such notice of motion was served and 
 that the papers and note of issue was not filed the motion 
 will be dismissed. 
 
 If an order to show cause is obtained by reason of in- 
 sufiicient time in which to give the five (5) days' notice 
 required by the rule, it will be necessary to file the papers 
 and a note of issue with the clerk on the Friday preceding 
 the 1st day of the term, the return of the papers to the 
 clerk with proof of service on or before the first day of the 
 term being in-sufficient. See Rule VIII. 
 
 The motion calendar is not called and no oral argument 
 is allowed. The motion should be made returnable before 
 the Appellate Term and will be referred by the Justices then 
 sitting to the Justices who heard the appeal and by them 
 decided. 
 
 The motion may be, and usually is, in the alternative 
 either for re-argument or leave to appeal. 
 
 The Court has power when leave to appeal only is asked 
 for, to grant a re-argument or vice versa. Leave to appeal 
 can only be granted by the Justices who heard the appeal. 
 Jaeger v. Koenig, 67 App. Div., 552; s. c. 73 N. Y. Supp., 
 907; Harrison v. Weir, 68 App. Div., 25; 73 N. Y. Supp., 
 119. 
 
Rules of the Appellate Term 41 
 
 LEAVE TO APPEAL— TO WHOM MADE. 
 
 In Curtin v. Met. St. Ry. Co., 22 Misc., 586, s. c, 49 N. 
 Y. Supp., 688, it was held that application for leave to 
 appeal to the Appellate Division was properly made to the 
 Justices of the Appellate Term in January, 1898, then 
 sitting, although the argument was heard and decision ren- 
 dered upon the appeal by different Justices who held the 
 term in December, 1897, and that a decision made by the 
 Justices sitting in January, 1898, denying the motion was 
 made by the proper Justices. This decision, however, was 
 overruled in Jaeger v. Koenig, 67 App. Div., 552; s. c, 73 
 N. Y. Supp., 907, and in Harrison v. Weir, 68 App. Div., 
 25; s. c, 73 N. Y. Supp., 119, and such application must 
 be heard and determined by the Justices of the Appellate 
 Term, who passed upon the appeal. 
 
 The practice is to make the application at the "next 
 succeeding term," and the Justices who are then sitting refer 
 the motion to the Justices who heard and decided the appeal. 
 Although not required to be done, this is the disposition 
 made of motions for re-argument, as the reasons laid down 
 in Jaeger v. Koenig, supra, apply to motions for reargument 
 with equal force as to those for leave to appeal. The better 
 practice is to make an affidavit setting forth in full the 
 reasons why a re-argument or leave to appeal is asked and 
 a copy of such affidavit served with the notice of motion — 
 five (5) days' notice of motion must be given and a note 
 of issue filed. See also, Rule "VIII." 
 
 LEAVE TO APPEAL— WHEN WILL BE GRANTED. 
 
 Such leave will be granted only (1), where the determina- 
 tion involves great interests or to settle a principle of law 
 affecting numerous cases; (2), where the decision is in 
 conflict with one previously rendered by the Appellate Term; 
 (3), where the questions of law involve an important public 
 statute or the principles involved are of importance to others 
 than the party litigating. Lynch v. Sauer, 16 Misc., 362; 
 s. c, 38 N. Y. Supp., 1; see also Davis v. Bonn, 16 Misc., 365; 
 s. c, 38 N. Y. Supp., 30. 
 
 For other cases showing when leave to appeal or for 
 re-argument will be granted or refused, see Bevins v. Rogers, 
 A. T. Pr., page 32 et seq. 
 
 Where leave to appeal from an order granting a new 
 trial is asked, the moving papers must contain a stipulation 
 that if the order appealed from be affirmed or the appeal 
 
42 Rules of the Appellate Teem 
 
 dismissed, judgment absolute may be rendered against the 
 party granted leave. The following is a proper form for 
 such purpose: 
 
 "The plaintiff (or defendant) hereby stipulates that 
 if permission be granted to him by the Court to appeal 
 to the Appellate Division, from the determination 
 made herein on the day of > 191 » 
 
 and such determination shall be affirmed by said Ap- 
 pellate Division or the appeal dismissed, that judg- 
 ment absolute may be rendered against him." 
 
 In Marine Nat. Bank v. Nat. City Bank, 59 N. Y., 67-73, 
 this rule was quoted and followed, and in Fosdick v. The 
 Town of Hempstead, 126 N. Y., 651, the Court said: 
 
 "Judging by the character of the papers upon which 
 motions of this nature are now frequently made, we 
 should assume that the profession has lost sight of 
 the rule, for in most of the cases which have lately 
 come under our notice, there has been an entire failure 
 to comply with its requirements, and the motion has 
 been made simply because the unsuccessful counsel has 
 thought that he would like to again argue the very 
 questions he had already submitted to, and which had 
 been expressly decided by the court. 
 
 "While it is very possible that we err in many 
 cases, yet the rule adopted in regard to re-arguments 
 is a proper one, considering the fact that there must 
 be at some point an end of litigation, and after coun- 
 sel has had his day in this court and has been un- 
 successful in his case, it is but fair to the court and 
 to other litigants who are pressing to be heard, that 
 a case should be made such as the court has decided 
 to be necessary before entertaining the question of the 
 propriety of granting a re-argument." 
 
 It sometimes happens that the successful party upon 
 an appeal from an order or judgment of the City Court has 
 caused the remittitur to be sent from the Appellate Term 
 to the Lower Court, and the judgment of the Appellate 
 Term has been made, by order of the City Court, the judg- 
 ment of that Court. This cannot be done except upon three 
 (3) days' notice that being a rule of the City Court, adopted 
 January 21st, 1909. See Law Journal, that date. The party 
 desiring a re-argument or leave to appeal should, therefore, 
 be diligent in moving prior to the return of the remittitur, 
 or at least prior to any action being taken thereon by the 
 
Rules op the Appellate Teem 43 
 
 City Court as once the remittitur has been returned to the 
 City Court, and any action has been taken thereon by that 
 Court, the Appellate Court loses jurisdiction to entertain the 
 motion. This was so decided in Carleton v. N. Y. C. & H. 
 R. R., Law Journal, October 16th, 1909, following a line 
 of cases cited therein. 
 
 The unsuccessful party is not without remedy even when 
 the remittitur has been returned to the City Court, and ac- 
 tion thereon has been taken. He may apply to the Appel- 
 late Term for an order requesting the City Court to return 
 the remittitur to the Appellate Term for the purpose of 
 moving therein for a re-argument or leave to appeal. The 
 practice is laid down in Franklin Bank Note Co. v. Mackey, 
 158 N. Y., 683, 685. 
 
 When a re-argument of an appeal from an order or judg- 
 ment of the City Court is granted, the Clerk of the Appellate 
 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 case 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 calendar or filed with the Clerk prior 
 thereto. They need not be re-served upon the opposing 
 party. 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, except that the return of the record and order affirm- 
 ing or reversing the order or judgment of the Lower Court 
 to that Court does not preclude the Appellate Term from 
 hearing the motion or granting the same, as the Supreme 
 Court has general jurisdiction over all inferior Courts. 
 Matter of Pye, 21 App. Div., 266. 
 
 The return upon appeal must be sent back from the Muni- 
 cipal 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 may 
 be obtained directing the Clerk of the Municipal Court to 
 
44 Rules op the Appellate Teem 
 
 send the return to the office of 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 reported, 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 judg- 
 ment 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. 
 
 A stay of proceedings pending the hearing and deter- 
 mination of a motion for a re-argument or for leave to 
 appeal, may be obtained only after a notice of motion has 
 been duly served. The usual practice is to obtain an order 
 to show cause returnable in 2 days, why a stay should not 
 be granted pending the hearing of the motion for re-ar- 
 gument, or leave to appeal. This order may contain a tem- 
 porary stay in the meantime. This order must be based 
 upon an affidavit showing service of a notice of motion, and 
 also setting forth "the reasons why a stay should be granted" 
 if an undertaking to secure the judgment has been given, 
 it should be so stated. 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., 
 108 N. Y. Supp., 811. No other Justices or branch of the 
 Supreme Court, unless it be the Appellate Division, has au- 
 thority to grant a stay upon such a motion, i. e., a stay of 
 proceedings until the hearing and determination of a mo- 
 tion. The stay terminates with the entry of the order with- 
 out 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. A stay pending a motion 
 for leave to appeal or re-argue is not granted as a matter 
 of course, after such a motion is made. For the purpose 
 of ascertaining whether or not there is probable cause for 
 granting such leave the rule requires that a copy of the 
 moving papers be attached to the notice of motion for a 
 stay. The remarks of the Court in the case of Laraschow- 
 sky V. Utopia Land Co., Law Journal, December 18th, 1907, 
 indicates the attitude of the Court regarding the granting 
 of stays and are as follows: 
 
 "The moving party appears to be under the im- 
 pression that a stay pending a motion to the Appel- 
 late Term for a re-argument or for leave to appeal to 
 
Rules op the Appellate Term 45 
 
 the Appellate Division is granted as a matter of 
 course. It is not a perfunctory ceremony to move 
 for a stay. The Court is expected to exercise its dis- 
 cretion in determining whether the application is made 
 in good faith and upon grounds which indicate at least 
 a reasonably fair chance of success of the moving 
 party in the Appellate Court. All that was here 
 shown was that a motion for re-argument or leave to 
 appeal had been made, and that a sufficient under- 
 taking on appeal had been executed. It is ordinarily 
 presumed that a judgment is correct, and absolutely 
 nothing is presented which would enable the court to 
 exercise an intelligent discretion in passing upon the 
 propriety of granting a stay. Mot'on denied." 
 
 A careful examination of the authorities above cited will 
 show the practitioner what must be made to appear in order 
 to secure the granting of the motion and unless there is 
 reasonable grounds for believing that such will be the re- 
 sult the motion for a stay will be denied. 
 
 If leave to appeal is granted, a stay pending the hearing 
 of the appeal in the Appellate Division will be granted, and 
 if a re-argument is granted a stay will be granted pend- 
 ing the hearing 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 applica- 
 tion for such a stay must be made in that Court. 
 
 If leave to appeal is denied by the Appellate Term the 
 unsuccessful party has still an opportunity to get a review 
 by the Appellate Division. Rule "X" of the Appellate Divis- 
 ion is as follows: 
 
 RULE X. — Applications "to a justice of the Ap- 
 pellate Division of the First Judicial Department," 
 under Section 1344 of the Code of Civil Procedure, 
 for the allowance of an appeal to be taken to such 
 Appellate Division from the determination of the jus- 
 tices designated to hear appeals from the City Court 
 of the City of New York and the Municipal Courts 
 of the Boroughs of Manhattan and the Bronx, may 
 be made upon any motion day within two months after 
 such determination, unless the determination is made 
 within two months of the last motion day prior to the 
 first day of July, in which case they may be made on 
 the first motion day in the October term; and must 
 be upon notice of two days to the opposite party or 
 parties, and a note of issue filed, and the same put 
 upon the calendar of motions in the manner provided 
 
46 Rules op the Appellate Term 
 
 by Rule 2 of the Appellate Division Rules, relating to 
 the hearing of motions. The papers, upon which such 
 application is made, must contain a copy of the opinion 
 of the justices below, if -any; a copy of the printed 
 record in the Court below, if any; a concise statement 
 of the grounds of alleged error, and proof of due serv- 
 ice of the papers upon which such application is 
 founded. Upon the calling of the Motion calendar, 
 such applications must be submitted without argument. 
 Such applications will not be entertained unless an ap- 
 plication for leave to appeal has first been made to the 
 justices by whom such determination was made, in the 
 manner provided by Rule VII for the regulation of 
 the hearing of appeals from the City Court of the 
 City of New York and the Municipal Courts of the 
 Boroughs of Manhattan and the Bronx and has been 
 denied. 
 
 RULE VIII. 
 Motions Generally — Practice — Calendar. 
 
 Five (5) days' notice of motion shall be given of 
 all motions made in the Appellate Term, except mo- 
 tions for restitution, under Section 323 of the Munici- 
 pal Court Act. In all motions noticed for the first day 
 of the term, a notice of such motion, whether founded 
 upon an order to show cause or a regular notice of 
 motion, with proof of service thereof, together with 
 a note of issue, must be filed with the clerk of the Ap- 
 pellate Tenn on the Friday preceding the commence- 
 ment of the term. The motion Calendar will be 
 published on the Saturday preceding the commence- 
 ment of the term, but no motion will be placed thereon 
 except upon compliance with this rule. 
 
 The motion calendar will not be called and no oral 
 argument will be allowed. The briefs of counsel and 
 the answering affidavits, if any, must be filed with 
 the clerk at or before 12 o'clock noon of the first 
 day of the term. 
 
Rules of the Appellate Teem 47 
 
 All motions, other than those made under rules 
 three and seven, whether upon an order to show cause 
 or by regular notice of motion, may be made return- 
 able upon any day of the term. 
 
 Except when the Appellate Term shall otherwise 
 direct, all decisions, either in cases upon appeal or on 
 motion, will, when announced, be accompanied by an 
 order duly signed. A motion for resettlement of such 
 order must be made upon two days' notice. 
 
 NOTES. 
 
 This rule was amended by the Appellate Division on De- 
 cember 31st, 1909, and has made the practice regarding mo- 
 tions in the Appellate Term more uniform. It must 
 be remembered that all motions to dismiss appeals for failure 
 to print and serve a case or the printed papers upon an 
 appeal from a judgment or order of the City Court or to 
 file the return from a Municipal Court, must be made re- 
 turnable on the 1st day of the term whether such motion is 
 based upon an order to show cause or a regular notice of 
 motion. See Rule "III." An order to show cause why an 
 appeal should not be dismissed under Rule "III," will not 
 be granted if there is time to give the five (5) days' notice 
 required by the rule. The same rule applies to motions for 
 re-argument or leave to appeal under Rule "VII." (See 
 notes to Rules "III" and "VII.") All other motions may 
 be made returnable upon any day of the term. 
 
 In all motions made returnable upon the 1st day of the 
 term, the motion papers, proof of service and a note of 
 issue must be filed with the Appellate Term Clerk on Friday, 
 preceding the first day of the term. The motion calendai 
 will be published on the Saturday preceding the first day 
 of the term. Rule 37 of the general rules of practice has no 
 application to the Appellate Term. 
 
 The opposing party has until 12 o'clock noon of the 1st 
 day of the term 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. 
 
 No motion papers will be received by the Clerk nor any 
 motion entertained by the Court, unless it appears upon the 
 
48 Rules of the Appellate Term 
 
 published calendar of motions, without the consent of both 
 parties, in which case it will be added to the motion calendar. 
 If a party has served motion papers, but has failed to file 
 them with proof of service and a note of issue, and the motion 
 does not appear upon the motion calendar, the opposing 
 party upon submitting an affidavit to that effect, and a copy 
 of the papers served upon him, may have the motion dis- 
 missed, with costs. See notes under Rule "VII." 
 
 Motions that are frequently made are those for a 
 stay of proceedings pending an appeal from an order of the 
 City or Municipal Courts. 
 
 Appeals to the Supreme Court are provided for by Sec- 
 tions 3188, 3189 and 3140 of the Code of Civil Procedure. 
 By Section 1344 of the Code of Civil Procedure it is pro- 
 vided that such appeals must be heard by the Appellate 
 Division or by Justices of the Supreme Court, designated 
 by the Appellate Division to hear them. It follows, there- 
 fore, that no stay pending an appeal from the City or Muni- 
 cipal Courts can be granted, by any Court, other than the 
 Appellate Division or one of the Justices thereof or by the 
 Appellate Term, or one of the Justices thereof. Stern v. 
 Barret Chemical Co., 124 App. Div., 377; 108 N. Y. Supp., 
 811; Bruce- Webster v. Abbott, 125 Supp., 635. "Applica- 
 tion for a stay must be made to the Court in which 
 the appeal is pending and not to the Court from which the 
 appeal is taken.'' 'i''an Orden v. Van Orden, 27 App. Div., 
 136; 50 N. Y. Supp., 184. 
 
 Motions for stays pending appeals must be made return- 
 able 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, pend- 
 ing 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. Men- 
 gis, 118 N. Y. Supp., 671; Amorisia v. Rand, 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 the 
 appeal, the motion will be denied. In the case of Edson v. 
 Subway Realty Co., Motion in the Appellate Term, reported 
 in the Law Journal, of February 25th, 1910, the Court said: 
 
Rules op the Appellate Term 49 
 
 "Not a fact is stated in the moving affidavits from 
 which it can even be inferred that the court below 
 erred. The motion is therefore denied." 
 
 See also: 
 
 Bouden v. Sire, 4^4 A. D., 194, 196. 
 
 Emigrant Court v. Bkj-n. E. R. Co., 40 A. D., 611. 
 
 Connally v. Manhattan R. Co., 7 A. D., 610. 
 
 A motion that has been denied without leave to renew, 
 should not be renewed upon the same state of facts as were 
 contained in the first motion, or upon facts which existed 
 and were known to the moving party at the time of the 
 first motion, without obtaining leave to renew said motion. 
 This does not affect the power of the Court to re-consider 
 its decision on a motion upon additional facts. Riggs v. 
 Purcell, 74 N. Y., 379; 9 Abb. Pr., 372. 
 
 "A motion of the kind required to be made upon notice 
 once denied by a Judge cannot be renewed unless (a) with 
 leave of the same Judge who denied it, or (b) if made 
 upon presentation of new facts which have occurred since 
 the denial of the previous motion, in which case the re- 
 newal may be made as a matter of right." Goldenberg v. 
 Adler, 123 N. Y. Supp., 387, and cases cited. 
 
 The exception is that when such a motion is renewed, at 
 the same term, before the same Judge, and entertained 
 by him, it is regarded as having been made upon his im- 
 plied leave, i. e., the new motion is the same as the old 
 motion, if the relief demanded is the same, and it is not 
 made upon new facts, merely because made on new papers, 
 by which counsel seeks to cover his carelessness in prepar- 
 ing the papers in the previous motion or to obviate the risk 
 (which he was willing to take on the previous motion) of 
 omitting to present then existing facts or considerations to 
 the attention of the Court id . Haskell v. Moran, 117 
 App. Div., 251. 
 
 A motion once made cannot be withdrawn without the 
 payment of costs or the consent of the Court. Hoover v. 
 Rochester Pr. Co., 2 App. Div., 11. 
 
 If the order handed down upon the decision of a motion 
 is not a proper order, the party desiring to have it correct- 
 ed 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 
 
50 Rules op the Appellate Term 
 
 should contain a statement that such order is intended to 
 take the place of the original order entered on the day 
 
 of , etc. 
 
 Motions for restitution may be made returnable upon any 
 day of the term, but six (6) days' notice must be given if 
 made upon a judgment of reversal or modification of a Mu- 
 nicipal Court judgment or order. Section 323 Municipal 
 Court Act. 
 
 Motions for restitution are permitted under the follow- 
 ing sections of the Code of Civil Procedure; Section 1005, 
 when a new trial is granted; Section 1529 in action relating 
 to real property; Section 1616 in action for dower; Section 
 2142 on certiorari proceedings; Section 2263 in summary 
 proceedings; Section 1323 after reversal or modification of 
 judgment upon appeals; and under Section 323, Municipal 
 Court Act, after reversal of judgment or final order upon 
 appeal. Section 35 of the Municipal Court Act has no ap- 
 plication to this Court. 
 
 Of these sections. Section 1323 and 2263 of the Code of 
 Civil Procedure, and Section 323 of the Municipal Court Act 
 which apply to the A. T. are as follows: 
 
 Section 1323. (Am'd. 1877, 1880, 1889) Restitution 
 when awarded. 
 
 "When a final judgment or order is reversed or 
 modified, upon appeal, the appellate court, or the gen- 
 eral term of the same court, as the case may be, may 
 make or compel restitution of property, or of a right, 
 lost by means of the erroneous judgment or order; but 
 not so as to affect the title of a purchaser in good 
 faith and for value. When property has been sold, 
 the court may compel the value, or the purchase price, 
 to be restored or deposited to abide the event of the 
 action, as justice requires. When the appeal is from 
 a judgment in favor of the owner of real estate, in an 
 action to set aside a conveyance thereof, or in an 
 action to compel'the specific performance of a contract 
 for the sale thereof, such owner shall have the same 
 right to sell or dispose of the same as though no ap- 
 peal had been taken; unless the appellant shall file 
 with the clerk of the court a written undertaking, in 
 a sum fixed by the court, or a judge thereof, upon a 
 nfttice to the respondent of at least ten days, and ap- 
 proved by such court or judge, to the effect that the 
 appellant will, in case the judgment appealed from 
 shall be affirmed, pay to such owner such damages as 
 he may suffer by reason of such appeal, not exceed- 
 
'«r/ 
 
 ; M 1 ■ 
 
 I 
 
 ^ 
 
 7 
 
 1 ■-> r -"^ 
 
 i 
 
 Rules of the Appellate Term ^^Ma^TX^^ 
 
 ing the amount of the penalty in such undertaking. 
 Such undertaking may be filed at any time during the 
 appeal, but any sale of such real estate or contract to 
 sell the same in good faith and for a valuable con- 
 sideration, after said judgment and before the filing 
 of such undertaking, shall be as valid as if such un- 
 dertaking had not been filed. In case such undertak- 
 ing shall not be filed, the respondent shall be entitled, 
 at any time during such appeal, to an order dis- 
 charging of record any notice of pendency of action 
 filed in the action, and, in an action to compel the 
 specific performance of a contract for the sale of real 
 estate, also canceling and discharging of said record 
 said contract, in case the same has been recorded. 
 
 Section 2263. Appellate Court may award restitu- 
 tion; action for damages. 
 
 "If the final order is reversed upon the appeal, the 
 appellate court may award restitution to the party 
 injured, with costs; and it may make any order, or 
 issue any other mandate, necessary to carry its de- 
 termination into effect. The person dispossessed may 
 also maintain an action, to recover the damages which 
 he has sustained by the dispossession. 
 
 Section 323, Municipal Court Act. Restitution upon 
 reversal. 
 
 "Where the judgment or final order is reversed or 
 modified, the appellate court may make or compel 
 restitution of property or of a right, lost by means 
 of the erroneous judgment; but not so as to affect the 
 title of a purchaser, in good faith and for value, or 
 property sold by virtue of a warrant of attachment 
 in the action, or an execution issued upon the judg- 
 ment. In that case, the appellate court may compel 
 the value, or the purchase price to be restored, or de- 
 posited to abide the event of the action, as justice re- 
 quires. Six days' notice of an application for an 
 order for restitution must be given; and if the appli- 
 cation is granted before judgment, the proper direc- 
 tion may be included." 
 The remedies provided by the Code are not exclusive and 
 a party may proceed by action. Haebler v. Myers, 132 N. Y., 
 363; S. C, 44 St. Rep., 403. For cases bearing upon the 
 matter see: Bevins v. Rogers, App. Term Prac, page 39 
 et seq. 
 
 No appeal will lie from an order granting or denjring a 
 motion originating in the Appellate Term. Gersman v. 
 Levy, 126 A. D., 83, 110 Supp., 236. 
 
52 Rules of the Appellate Teem 
 
 Calendar Rules 
 
 RULE I. 
 
 The calendar of appeals from orders and judgments 
 of the City Court will be called in the forenoon of the 
 first day of the term at Ten o'clock A. M. 
 
 The calendar of appeals from orders and judgments 
 of the Municipal Court will be called on the second 
 day of the term at Ten o'clock A. M. 
 
 RULE IL 
 
 In motions for leave to appeal or for reargument 
 an endorsement must be made upon the motion papers 
 stating the term of the Court at which the case was 
 argued or submitted. 
 
 If an appeal upon the calendar is affected by a mo- 
 tion, the motion papers and the note of issue must be 
 endorsed with the calendar number of such appeal. 
 
 NOTES. 
 
 This rule is important, as motions for leave to appeal and 
 for re-argument are referred to the Justices who heard and 
 decided the case on appeal, a reference to the term at which 
 the appeal was heard, enables the motion to be promptly 
 submitted to such Justices. 
 
 Motions affecting cases upon the calendar, are usually 
 decided before the hearing of the appeal, and if the motion 
 papers are endorsed with the calendar number of the case 
 affected by the motion, the clerk at once presents such mo- 
 tions to the Justices for decision, and their decision is an- 
 nounced upon the call of the calendar. 
 
Rules of the Appellate Teem 53 
 
 RULE III. 
 
 Briefs of counsel, when reference therein is made to 
 the testimony given upon the trial, must give the num- 
 ber of the folio in the printed case if an appeal from 
 the City Court, and the number of the page in the 
 record if an appeal from the Municipal Court. 
 
 If the appellant's brief fails to comply with this rule 
 the appeal may be dismissed. If the respondent's brief 
 is deficient in this respect the appeal may be considered 
 on the appellant's brief alone. 
 
 NOTES. 
 
 Where the testiir.ony in the case or the return upon ap- 
 peal is referred to in the briefs, they must contain a refer- 
 ence to the folio of the printed case or the number of the 
 page in the record, where such testimony may be found. If 
 this rule is not complied with the brief so deficient will be 
 disregarded. Blumenthal vs. Stanclipp, 104 Supp., 362. 
 
Index. 
 
 Page 
 
 Abandonment of Appeal. 
 
 City Court may declare appeal abandoned 14 
 
 Order declaring appeal abandoned not reviewable 15 
 
 Remedy when appeal declared abandoned 15 
 
 Affidavits. 
 
 To dismiss appeal 25 
 
 To place appeal upon calendar 9 
 
 Amendment. 
 
 Of return 19-20 
 
 Of order 13 
 
 Appellate Division. 
 
 Leave to appeal 41 
 
 Appellant. 
 
 Duty to file return 13-14-18 
 
 Failure to appear 37 
 
 Appellate Term. 
 
 Formation 3 
 
 Jurisdiction 3 
 
 Powers 6 
 
 Terms — ^when and where held 6-7 
 
 Calendar — ^how made 7 
 
 Records of 6 
 
 Appeal. 
 
 Time in which to appeal 44 
 
 Abandonment of appeal 14 
 
 Dismissal of appeal 6 
 
 May be argued or submitted 34 
 
 When will be dismissed on courts own motion ... 11 
 
 Argument. 
 
 Time allowed for 35 
 
 Notice of 9-33 
 
 Not allowed upon motion 40 
 
 Attachment. 
 
 To compel return by 28 
 
 To compel amended return by 30 
 
11. 
 
 Page 
 Briefs. 
 
 On appeal from City Court 32 
 
 On appeal from Municipal Court 32 
 
 On motions for re-argument or leave to appeal: 
 
 Number of 32-38 
 
 When served and filed by Appellant 31 
 
 When served and filed by Respondent 31 
 
 How printed (Rule 43) 32 
 
 Failure to serve 33 
 
 Reply briefs 35 
 
 Calendab. 
 
 Rules of 52 
 
 On appeals from City Court 8 
 
 On appeals from Municipal Court 7 
 
 Calendar. 
 
 Call of 33, 52 
 
 On motions 46 
 
 Case. 
 
 When to be filed 8 
 
 Certificate of all the evidence 10 
 
 To be f olioed 32 
 
 Certificate of 9-10 
 
 Stipulation 10-11 
 
 Ordering on file in Appellate Term 11 
 
 Settlement of City Court appeal 9-14 
 
 Settlement of Municipal Court appeal 18 
 
 Re-settlement of 21 
 
 How printed 32 
 
 Time to serve 13 
 
 Time to cause return to be filed 13 
 
 Extensions of time 16-26-27 
 
 Failure to file and serve 26 
 
 Exhibits 10 
 
 Certificate. 
 
 Of clerk of City Court 9-10 
 
 Of clerk of Municipal Court 23 
 
 Certification. 
 
 Defective — ^how raised 9 
 
 Clerk of Appellate Term. 
 
 To make calendar 7-8 
 
 Fees of 33 
 
 Case to be filed with 7 
 
 Briefs to be filed with 31 
 
 Motion papers to be filed with 46 
 
 Note of issue to be filed with 9-46 
 
111. 
 
 Page 
 
 Costs. 
 
 When to be paid 27-28 
 
 Default. 
 
 Relief from 27 
 
 Dismissal op Appeal. 
 
 For failure to prosecute 24-25-26 
 
 For failure to serve case or papers 13 
 
 For failure to file return 13 
 
 Dismissal op Motion. 
 
 For failure to place on calendar 40 
 
 Extension op Time. 
 
 To file and serve case 16 
 
 To file and serve briefs 33-38 
 
 Exhibits ^ 10 
 
 Failure to 
 
 File return 26 
 
 Filing. 
 
 Of case and papers on appeal 32 
 
 Of Briefs 32-37 
 
 Of motion papers 46 
 
 Index. 
 
 Of case and briefs 32 
 
 Judgments. 
 
 Appeal from the City Court 4-8 
 
 Appeal from of Municipal Court 3-5-11 
 
 Res-adjudicata 21 
 
 Jurisdiction. 
 
 Of Appellate Term 3-4 
 
 When lost and how regained 42-43 
 
 Leave to Appeal to the Appellate Division. 
 
 Motion for 41 
 
 Notice of motion and practice 39 
 
 Stipulation as condition for granting 42 
 
 Stay on motion 44-45 
 
 Minutes. 
 
 Payment for — in Municipal Court 26 
 
 Lost — How appeal heard 25 
 
 Motions. 
 
 Calendar for 46 
 
 When heard 47 
 
 Note of issue for 47 
 
 Notice of motion 47 
 
 Filing of notice of motion 47 
 
 Answering affidavits 48 
 
IV. 
 
 Page 
 
 Case on calendar affected by 52 
 
 To dismiss appeal 13 
 
 To amend return 19-20-30 
 
 To compel filing of return by attachment 28 
 
 To remit return to court below for amendment . . 19 
 
 To extend time 27 
 
 To open default 27 
 
 For reargument 41 
 
 For leave to appeal to the Appellate Division .... 41 
 
 For stay 44 
 
 For restitution 50 
 
 Dismissal of 40 
 
 Withdrawal of 49 
 
 Renewal of 49 
 
 Notes of Issue. 
 
 When to be filed 9-47 
 
 When not required 11 
 
 Notice of Argument. 
 
 When and how served 9-12-33 
 
 Service by mail 9-12 
 
 When filed 9-12 
 
 Once filed sufficient 12 
 
 Failure to serve or file 33 
 
 Orders. 
 
 On decisions of Appellate Term 12 
 
 Resettlement of 13 
 
 Ex-Parte 27-43 
 
 To show cause — when may be obtained 40-44 
 
 Reargument. 
 
 Motions for when and where made 38-41 
 
 Motion for when heard 38-41 
 
 Motion papers what to contain 41 
 
 When allowed 41 
 
 When denied , 41 
 
 By who heard 43 
 
 Stay pending motion 44 
 
 Records. 
 
 Judicial notice of 21 
 
 Remittitur. 
 
 To the City Court 12-42 
 
 To the Municipal Court 12 
 
 Resettlement. 
 
 Of case 20 
 
 Of Order 13 
 
V. 
 
 Page 
 Restitution. 
 
 Motions for 50 
 
 When court will order 50 
 
 Return on Appeal. 
 
 When to be filed 7-8 
 
 Prom orders of Municipal Court — ^how made up 21 
 From judgments of Municipal Court — how made 
 
 up 23 
 
 Amendment of 19 
 
 Extension of time to file 26 
 
 Compelling filing of — ^by attachment 28 
 
 Minutes lost — how appeal heard 25 
 
 Rules. 
 
 Force of 7 
 
 Stay of Trial. 
 
 On appeal from orders of the City Court 17-48 
 
 On appeal from orders of the Municipal Court 17-48 
 
 For non-payment of costs 27-28 
 
 On motion for reargument 44 
 
 On motion for leave to appeal 44 
 
 Time. 
 
 To serve case 13 
 
 To file return from the City Court 8 
 
 To cause return to be filed from Municipal Court 8-18 
 
 Allowed for argument of appeal 31-32-35 
 
 To serve notice of argument 9-12 
 
 To serve notice of motion 46 
 
 To file briefs 31 
 
 Extension of 16-33-3? 
 
 Trial. 
 
 Date of new — upon reversal of judgment of 
 
 Municipal Court 12