Cornell University Law Library THE GIFT OF Allan H. Treman, Attorney at Law Ithaca, New York Date.,Mar..ch...8.,....lS Cornell University Library KFN5992.A2 1910 General rules of practice of the courts 3 1924 022 879 344 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022879344 GENERAL RULES OF PRACTICE OF THH ^^«; Vo<^< f St A re) Courts of Record OF THB STATE OF NEW YORK Attention is called to the amended Rules of Practice in Foreclosure Cases, adopted by the Justices of the Supreme Court, October 12, 19'10, to comply with the amended Rules of Practice. These rules will be found following page 708. By MARCUS T. HUN Former Reporter of the Supreme Court Albany MATTHEW BENDER & CO. New York BAKER, VOORHIS & CO. 1910 GENERAL RULES OF PRACTICE OF THE Courts of Record OF THB STATE OF NEW YORK WITH annotations, notes, and references TENTH EDITION By MARCUS T. HUN Former Reporter of the Supreme Court Albany MATTHEW BENDER & CO. New York BAKER, VOOEHIS & CO. 1910 B653(93 Copyright, 1874, 1877, 1881, 1884, 1887 and 1805 By BANKS & BROTHERS. Copyright, 1899, 1904 and 1908, By BANKS & COMPANY. Copyright, 1910, By BAKER, VOORHIS & CO. AND MATTHEW BENDER & CO. PREFACE. The many important amendments to the Rules of Practice of the Supreme Court, made by the Appellate Division judges at the recent conventioa in April, 1910, the numerous important changes made in the Code by the enactment of the Consolidated Laws, and the decisions of the courts since the last edition in 1906, have rendered necessary the making of this new edition, from new type and plates. All of the original work of Marcus T. Hun, former Supreme Court Reporter, has been retained and the same brought down to date. Attention is called to the fact that indexes are given separately to both the Rules and the I^otes. Albany, October 12, 1910. TABLE OF CONTENTS. Table showing the corresponding rules of the Supreme Court under the various revisions 5 Statutes and authorities relating to the adoption, revision and general construc- tion of Rules 7 Convention of justices to make the General Rules of Practice — Proceedings of . . 11 Convention of justices of 1910 — Proceedings of 25 Supreme Court — Sections of the Code of Civil Procedure affecting that court . . 28 General Rules of Practice 31 Northampton Table of Mortality 463 Carlisle Table of Mortality 465 Rules of the Appellate Division in the several departments: Rules regulating practice in First Department 467 Rules peculiar to the Second Department 507 Rules peculiar to the Third Department 517 Rules peculiar to the Fourth Department 521 Rules of the New York Surrogate's Court 528 Rules of Kings county Surrogate's Court 543 Rules of City Court of New York 547 Rules of Court of Special Sessions. New York city 555 Rules of the Municipal Court of the City of New York 558 Rules of the Court of General Sessions, City of New York 569 Rules of the Magistrates' Courts, City of New York, 1st Division 576 Rules of the Board of City Magistrates, 1st Division 582 Rules of the Magistrates' Courts, City of New York, 2d Division 586 Rules of the Board of City Magistrates, 2d Division 589 Rules of Court of Claims 693 Rules of State Board of Law Examiners 610 Local rules 613 Judiciary article of the New York State Constitution 697 TABLE SHOWING THE CORRESPONDING RULE. 1880, 1900. 1896. 1884 and 1888. 1877. 1874. 1871. 1858. 1 1 1 1 1 and 2 1 and 2 1 and 2 2 2 2 2 3 3 3 3 3 3 3 4 and 7 3 and 7 3 4 4 4 4 5 4 4 5 5 5 5 8 and 9 8 and 9 5 and 6 6 6 6 6 10 10 8 7 7 7 7 11 11 9 8 8 8 8 12 12 9 9 9 9 9 14 14 11 10 10 10 10 15 15 12 11 11 11 11 16 16 13 12 12 12 12 17 17 13 13 13 13 14 14 14 14 18 18 14 15 15 15 15 19 19 20 16 ri6 117 16 16 20 20 16 17 17 22 22 17 17 18 18 18 18 23 and 24 23 and 24 18 ri9 \20 19 19 26 26 20 19 20 Part of Rule 19 20 21 21 21 21 27 27 39 22 22 22 22 28 28 50 23 23 23 23 29 29 21 24 24 24 24 30 30 22 25 25 25 25 31 31 23 26 26 26 26 33 33 24 27 27 27 27 35 35 56 28 28 28 28 36 36 29 29 29 29 29 37 37 30 30 30 30 30 39 39 32 31 31 31 31 40 40 33 32 32 32 32 and part of 34 41 41 34 33 33 33 33 42 42 35 34 34 34 34 43 43 36 35 35 35 35 44 44 37 36 36 36 36 45 37 37 37 37 46 46 39 38 38 38 38 47 47 40 39 39 39 39 48 48 41 40 40 40 40 49 49 42 41 41 41 41 50 50 43 RULES. CORRESPONDING RULE — (Continued). 1880, 1900. 1896. 1884 and 1888. 1877. 1874. 1871. 1858. 42 42 43 43 r411 142/ 43 43 52 52 46 44 44 45 54 54 48 45 45 44 47 56 56 52 46 46 45 48 57 57 53 47 47 46 49 58 58 54 48 48 f47 \48 50 51 69 60 59 60 68 59 49 49 49 52 61 61 59 50 50 50 63 62 62 61 51 51 51 54 63 63 62 52 52 52 55 64 64 63 63 53 63 56 65 65 64 54 54 54 67 66 66 65 55 65 55 58 67 67 56 56 56 56 59 68 68 67 57 67 57 60 69 69 68 58 58 68 61 70 70 69 59 69 59 62 71 71 70 60 60 60 63 72 72 71 61 61 61 64 73 73 72 62 62 62 65 74 74 73 63 63 63 67 76 76 75 64 64 64 68 77 77 76 65 65 66 69 78 78 77 66 66 66 70 79 79 78 67 67 67 72 81 81 80 68 68 68 73 82 82 81 69 74 83 83 82 69 69 70 75 84 84 83 70 70 71 76 85 85 84 71 71 72 77 86 86 85 72 72 73 78 87 87 86 73 73 74 79 88 88 87 74 74 75 81 90 90 89 75 75 76 82 91 91 90 76 76 77 83 92 92 91 77 77 78 84 93 93 92 78 78 79 85 79 79 80 86 80 80 81 87 81 81 82 88 82 82 82 89 21 21 83 83 84 90 96 96 84 84 85 91 97 97 93 COURTS OF RECORD. ADOPTION, REVISION AND GENERAL CONSTRUC- TION OF RULES. COURT OF APPEALS RULES. The Court of Appeals may from time to time make, alter, and amend rules, not inconsistent with the Constitution or statutes of the State, regu- lating the practice and proceedings in the court. (Judiciary Law, § 51.) RULES AS TO THE ADMISSION OF ATTORNEYS. The rules established by the Court of Appeals touching the admission of attorneys and counselors to practice in the courts of record of the State, shall not be changed or amended except by a majority of the judges of that court. A copy of each amendment to such rules must, within five days after it is adopted, be liled in the office of the Secretary of State. (Judiciary Law, § 53, subd. 4.) Exemptions as to the clerkship required on the examination allowable in the case of the graduates of certain law schools. (Judiciary Law, § 53, subd. 5.) THE GENERAL RULES OF PRACTICE. 'The justices assigned to the Appellate Division of the Supreme Court shall meet in convention at the Capitol, in the city of Albany, on the fourth Tuesday in October, eighteen hundred and ninety-five, and at least every second year thereafter. They must also meet from time to time at the same place whenever called together by at least five of said justices at a time to be fixed in the said call, a copy of which shall be delivered at least one week before the time fixed to the presiding justice of each department. The convention of justices assigned to the Appellate Division must estab- lish rules of practice not inconsistent with this chapter or the Code of Civil Procedure, which shall be binding upon all the courts in this State, and all the judges and justices thereof, except the Court for the Trial of Impeachments and the Court of Appeals. The rules thus established are styled 'the General Rules of Practice.' (Judiciary Law, §§ 93, 94.) Must prescribe the cases in which a discovery or inspection may be com- pelled. (Code of Civil Procedure, § 804.) [7] 8 CoTJKTS OF EeCOED. May prescribe rules of procedure where a commission has been issued by a court out of the State. (Code of Civil Procedure, § 915.) May prescribe places of trial of issues. (Code of Civil Procedure, § 976.) May prescribe as to the settlement of a case and exceptions. (Code of Civil Procedure, § 997.) Are applicable to appeals in special proceedings. (Code of Civil Procedure, § 1361.) May prescribe the manner in which notice of application to issue execution against the estate of a deceased debtor may be given. (C!!ode of Civil Pro- cedure, § 1381.) POWER OF CONVENTION. Rules may be made altering the practice under the Code previously settled by decisions of the court. (Havemeyer v. IngersoU, 12 Abb. Pr. [N. S.] 301 [Sp. T. 1871].) The Constitution does not authorize the delegation of the law-making power to a convention of judges. (Winston v. English, 14 Abb. Pr. [N. S.] 124, 125 [Supr. a. Gen. T. 1873].) No general rule can be made inconsistent with the Code. (Rice v. Ehele, 55 N. Y. 524 [1874] ; Lakey v. Cogswell, 3 Code R. 116 [N. Y. Com. PI. 1850] ; French v. Powers, 80 N. Y. 146 [1880]; Palmer v. Phoenix Ins. Co., 22 Hun, 224 DI880]; Gormerly v. McGlynn, 84 N. Y. 284 [1881].) A rule cannot alter a statutory provision. (Glenney v. Stedwell, 64 N. Y. 120 [1876].) POWER OF THE COURTS. All matters of practice are in the first instance in the discretion of the courts in which the questions of practice arise. Yet matters of practice come after a certain time to be governed absolutely by the custom of the courts. (Fisher v. Gould, 81 N. Y. 232 [1880]. See, also, McQuigan v. D., L. & W. R. R. Co., 129 N. Y. 50 [1891].) 'The Supreme Court in the several judicial districts of the State has no power to create general rules. (Matter of Opening, etc., the Bowery, 19 Barb. 588 [Gen. T. 1855]. See, however. General Rules, Nos. 84 and 46.) INHEItBNT POWER OF PROCEDURE. Whatever judicial procedure is essential to enable courts to exercise their functions is authorized. The powers of courts are either statutory or those which pertain to them by force of the common law, or are partly statutory and partly derived from immemorial usage, the latter constituting the inherent jurisdiction of the courts. (McQuigan v. D., L & W. R. R. Co., 129 N. Y. 50 [1891].) JURISDICTION CONFERRED BY THE CONSTITUTION. The power given to the Supreme Court by the Constitution cannot be limited by the Legislature or by the Code itself under any legislative authority. (People ex rel. The Mayor, etc., v. Nichols, 79 N. Y. 582 [1880].) Geneeal Consteuction of Eules. 9 FORMATION OF THE SEVERAL APPELLATE DIVISIONS. " There shall be an Appellate Division of the Supreme Court, consisting of seven justices in the first department, and of five justices in each of the other departments. In each department four shall constitute a quorum, and the concurrence of three shall be necessary to a decision. No more than five justices shall sit in any case." (Const, of 1894, art. 6, § 2.) WHO MAY WOT SIT IN REVIEW. "No judge or justice shall sit in the Appellate Division or in the Court of Appeals in review of a decision made by him or by any court of which he was at the time a sitting member." (Const, of 1894, art. 6, § 3.) CASES NOT PROVIDED FOE. Where its own rules do not cover the case, the court follows the practice of the King's Bench in England. (Dubois v. Philips, 5 Johns. 235 [Sup. Ct. 1809] ; Miller v. Stettinei-, 7 Bosw. 695 [Supr. Ct. Sp. T. 1862] ; S. C, 22 How. Pr. 518; Mut. Life Ins. Co. v. Bigler, 79 N. Y. 568.) PRE-EXISTING PRACTICE. Although there is no saving in terms of the pre-existing practice, the rules cannot be deemed to abrogate it, where such practice was not dependent upon any court rule. (Miller v. Stettiner, 7 Bosw. 696 [Supr. Ct. Sp. T. 1862].) GENERAL RULES FOLLOWED BY THE COURT OF APPEALS. The General Eules of Practice established under section 17 of the Code of Civil Procedure are followed by the Court of Appeals in cases not otherwise provided for. (People ex rel. Wallkill Valley R. R. Co. v. Keator, 101 N. Y. 610-613 [1885].) Exceptions.] Subdivision 10 of section 791 of the Code of Civil Pro- cedure, which mentions among preferred causes " a cause entitled to preference by the General Rules of Practice " does not apply to the practice in the Court of Appeals. (Nichols v. Scranton Steel Co., 135 N. Y. 634 [1892].) Section 1361 of the Code of Civil Procedure, providing that appeals from determinations in special proceedings " are governed by the provisions of this act and of the General Rules of Practice relating to an appeal in an action, except as otherwise specially prescribed by law" does not apply to appeals to the Court of Appeals. (Matter of Southern Boulevard R. R. Co., 128 N. Y.- 93 [1891].) EFFECT OF EULES. Rules of courts have the force and effect of statutes. (Matter of Moore, 108 N. Y. 280 [1888] ; People ex rel. The Mayor v. Nichols, 18 Hun, 535 [1879] ; reversed, but not on this point, 79 N. Y. 582.) DISREGARDING RULES. The court may disregard its rules where a proper case is presented. (Clark V. Brooks, 26 How. Pr. 285 [N. Y. Com. PI. Sp. T. 1864].) 10 COUETS OF BeCOED. The true object of technical rules is to promote justice or punish injustice. When they fail of these ends courts should neither encourage nor enforce them. (People v. Tweed, 5 Hun, 353 [1875]; affd., 63 N. Y. 194.) The court will not depart from its customary modes of procedure, especially where such departure tends to infringe on the general rules of the court. (Battershall v. Davis, 23 How. Pr. 383 [Gen. T. 1861].) The disregard of the rules will not be allowed to be interposed, as a defense to a remedy, which would have been open to his adversary in case a party had followed the rules in his pleading. (Goldberg v. Utley, 60 N. Y. 429 [1875].) RULES — BY WHAT COURT CONSTRUED. The rules of the Supreme Court are under its control, and its decision in reference thereto will not be reviewed by the Court of Appeals. (Evans v. Backer, 101 N. Y. 289 [1886] ; Martine v. Lowenstein, 68 id. 456, 6 Hun, 225.) Each court is the best judge of its own rules, and a higher court will not reverse any construction given to them, not palpably erroneous. (Coleman v. Nantz, 63 Penn. St. [13 Smith] 178 [Sup. Ct. 1869].) CONSTRUCTION OF AMENDMENTS OF RULES. The amendments of the rules of court are analogous to the amendments of the statutes and should receive the same construction. (Matter of Warde, 154 N. Y. 342 [1897].) CONSTRUCTION GIVEN TO STATUTES BY RULES. The rules made by the court, under authority of the Code, may be con- sidered as giving construction to the statute. (Myers v. Feeter, 4 How. Pr. 241 [Sp. T. 1850]; S. C, 2 Code R. 147.) PUBLICATION OF RULES. A rule thus established [in pursuance of the provisions of section 94 of the Judiciary Law] dogs not take effect until it has been published in the newspaper published at Albany, designated pursuant to section 82 of the Executive Law, once in each week for three successive weeks. (Judiciary Law, § 95.) A general rule or order of the Court of Appeals does not take effect until it has been published in the newspaper published at Albany, designated pur- suant to section 82 of the Executive Law, once in each week for three suc- cessive weeks. (Judiciary Law, § 95.) RULES OF THE CITY COURT OF NEW YORK.* The justices of the court, or a majority of them, may, from time to time, establish rules of practice for the court not inconsistent with this act or with the General Rules of Practice established as prescribed in section 94 of the Judiciary Law. The latter govern the practice in the court, as far as they are applicable thereto. (Code of Civil Procedure, § 323.) * The name " Marine Court of the City of New York " was changed to the " City Court of New York " by chapter 26 of the Laws of 1883. PROCEEDINGS OF THE CONVENTION OF 1899. At a convention of the justices of the Appellate Division of the Supreme Court of the State of New York, held at the Capitol, in the city of Albany, N. Y., on the 24th day of October, 1S99, at one o'clock p. m. of that day, the following presiding justices and associate justices were present: Hon. CHARLES H. VAN BRUNT, Hon. EDWARD PATTERSON, Hon. GEORGE C. BARRETT, Eon. GEORGE L. INGRAHAM, Hon. WHjLIAM RUMSEY, Hon. CHESTER B. McLAUGHLIN, Of the First Department. Hon. WILLIAM W. GOODRICH, Hon. JOHN WOODWARD, Hon. EDGAR M. CULLEN, Of the Second Department. Hon. CHARLES E. PARKER, Hon. JUDSON S. LANDON, Hon. D-CADY HERRICK, Hon. MILTON H. MERWIN, Of the Third Department. Hon. GEORGE A. HARDIN, Hon. PETER B. McLENNAN, Hon. WILLIAM H. ADAMS, Hon. WALTER LLOYD SMITH, Of the Fourth Department. On motion of Presiding Justice Van Brunt, it was Resolved, That Presiding Justice Hardin be requested to act as chairman of the convention. On motion of Presiding Justice Van Brunt, Mr. Marcus T. Hun was requested to act as secretary of the convention. Presiding Justice Van Btunt stated the purpose of the conven- tion, referring, among other things, to section 915 of the Code of Civil Procedure, as amended by chapter 502 of the Laws of 1899, providing that the General Rules of Practice must prescribe rules for the procedure where a commission to take testimony within the State has been issued by a court without the State. [11] 12 GouETs OF Eecoed. Justice Ingraham moved that Rule 16 be amended by adding thereto Eule 17, so that, as amended, Rule 16 would read as follows : " Rule 16. The order for granting the application shall specify the mode in which the discovery or inspection is to be made, which may be either by requiring the party to deliver sworn copies of the matters to be discovered, or to allow an inspection with copy, or by requiring him to produce and deposit the same with the clerk, unless othervnse directed in the order. The order shall also specify the time within which the discovery or inspection is to be made, and when papers, articles or property are required to be deposited or inspected, the order shall specify the time the deposit or the opportunity for inspection shall continue. " The court or judge may direct that the order directing the discovery or inspection shall operate as a stay of all other proceed- ings in the case, either in whole or in part, until such order shall have been complied with or vacated." Which motion was adopted. Justice Ingraham moved that Rule 17 be amended so as to read as follows: " Rule 17. Application for a subpoena to compel the attendance of a witness to obtain testimony imder depositions taken within the State for use without the State, and proceedings thereon. "The petition prescribed by section 915 of the Code of Civil Procedure must state generally the nature of the action or proceed- ing in which the testimony is sought to be taken, and that the testimony of a witness is material to the issues presented in such action or proceeding, and shall set forth the substance of or have annexed thereto a copy of, the commission, order, notice, consent or other authority under which the deposition is taken. In case of an application for a subpoena to compel the production of books or papers, the petition shall specify the particular books or papers the production of which is sought, and show that such books or papers are in the possession of or under the control of the witness and are material upon the issues presented in the action or special proceeding in which the deposition of the witness is sought to be taken. Unless the court or judge is satisfied that the application is made in good faith to obtain testimony within sections 914 and Peoceedings of the Convention of 1899. 13 915 of the Code of Civil Procedure, he shall deny the application. Where the subpoena directs the production of books or papers, it shall specify the particular books or papers to be produced, and shall specify whether the witness is required to deliver sworn copies of such books or papers to the commissioner, or to produce the original thereof and deposit the same with the commissioner. This subpoena must be served upon the witness at least two days, or in case of a subpoena requiring the production of books or papers, at least five days before the day on which the witness shall be com- manded to appear. A party to an action or proceeding in which a deposition is sought to be taken, or a witness subpoenaed to attend and give his deposition may apply to the court to vacate or modify such subpoena. " Upon proof by affidavit that a person to whom a subpoena was issued has failed or refused to obey such subpoena; to be duly sworn or affirmed ; to testify or answer a question or questions pro- pounded to him ; to produce a book or paper which he has been subpoenaed to produce, or to subscribe to his deposition when cor- rectly taken down, a justice of the Supreme Court or a county judge shall grant an order requiring such person to show cause before the Supreme Court, at a time and place specified, why he should not appear; be sworn or affirmed; testify; answer a ques- tion or questions propounded; produce a book or paper; or sub- scribe to his deposition, as the case may be. Such affidavit shall also set forth the nature of the action or special proceeding in. which the testimony is sought to be taken, and a copy of the plead- ings or other papers defining the issues in such action or special proceeding, or the fact to be proved»therein. Upon the return of such order to show cause, the Supreme Court shall upon such affidavit and upon the original petition, and upon such other facts as shall appear, determine whether such person should be required to appear; be sworn or affirmed; testify; answer the qxiestion or questions propounded; produce the book or paper, or subscribe to his deposition, as the case may be, and may prescribe such terms and conditions as shall seem proper. Upon proof of a failure or refusal on the part of any person to comply with any order of the court made upon such determination, the court or judge shall make an order requiring such person to show cause before it or him at a time and place therein specified, why such person should 14 CoTJETS OF E.ECOED. not be punished for the offense as for a contempt. Upon the re- turn of the order to show cause the questions which arise must be determined as upon a motion. If such failure or refusal is estab- lished to the satisfaction of the court or judge before whom the order to show cause -is made returnable, the court or judge shall enforce the order and prescribe the punishment as in the case of a recalcitrant witness in the Supreme Court." Which motion was seconded by Presiding Justice Van Brunt, and was adopted. Justice Rumsey called attention to the delay attending the publi- cation of the Session Laws, and read a communication addressed to the Governor and Legislature of the State of New York on this subject as follows? " To the Governor and Legislature of the State of New York: " The justices of the Appellate Division of the Supreme? Cburt, in convention assembled, respectfully call your attention to the fact that the Session Laws for the session of 189^ have not yet been published or circulated in offiicial form so that they can be referred to and used. " The session closed early in May, except for an extra session held during the latter part of the month, during which several Session Laws were passed. Many of these laws took effect imme- diately and some on the first of September, and it is believed that on that last-mentioned date every one of them was in force. Many of them are of very considerable importance. They affect not only the election which is to take place in a very short time, but the manner of registering voters which has already been completed. Many of the sections of the Code of Civil Procedure were also amended during that session. It is impossible to get these in official form, except from the Secretary of State, until the Session Laws shall have been published. " The failure to publish these important laws causes great in- convenience, and may well bring about public scandal. " The delay this year has been unexampled in length, but a great delay occurs every year, and it is rarely that the official copies of the Session Laws are ready for publication until the first of September. Peoceedings oe the Convention of 1899. 15 " We beg leave to suggest that this delay should not be per- mitted, and to request that some steps be taken to cause an earlier publication and delivery of the current laws of the State in an official form. " Resolved, That the chairman and clerk of this convention be requested to send to the Governor, the Lieutenant-Governor and to the Speaker of the Assembly, a copy of this memorial and resolution." Which communication, on motion of Justice Ingraham, as ex- pressing the sense of the convention, was unanimously adopted. Justice Landon called attention to the imperfect way in which the indices of the Session Laws were prepared and the want of uniformity in such indices from year to year, and offered a reso- lution that the Secretary of State be requested to take more care in the preparation of such indices, which was adopted. Justice Ingraham moved that Rule 20 be added to Rule 19, so that, as amended, Rule 19 would read as follows: " Rule 19. Every pleading, deposition, affidavit, case, bill, ex- ceptions, report, paper, order or judgment, exceeding two folios in length, shall be distinctly numbered and marked at each folio in the margin thereof, and all copies either for the parties or the court shall be numbered or marked in the margin, so as to conform to the original draft or entry and to each other, and shall be indorsed with the title of the cause. All the pleadings and other proceed- ings and copies thereof shall be fairly and legibly written or printed, and if not so written or printed and folioed and indorsed as aforesaid, the clerk shall not file the same, nor will the court hear any motion or application founded thereon. " All pleadings and other papers in an action or special proceed- ing served on a party or an attorney, or filed with the clerk of the court, must comply with section 796 of the Code of Civil Pro- cedure and must be written or printed in black characters ; and no clerk of the court shall file or enter the same in his office unless it complies with this rule. The party upon whom the paper is served shall be deemed to have waived the objection for non-com- pliance with this rule unless within twenty-four hours after the receipt thereof he returns such papers to the party serving the same with a statement of the particular objection to its receipt; 16 COTJETS OF ReCOED. but this waiver shall not apply to papers required to be filed or delivered to the court. " It shall be the duty of the attorney by whom the copy plead- ings shall be furnished for the use of a court on trial, to plainly designate on each pleading the part or parts thereof claimed to be admitted or controverted by the succeeding pleadings." The question whether Rule 20' should be added to Rule 19 was put by the chairman, and was decided in the affirmative. Justice Ingraham moved that Rule 20 be made to read as follows : "Rule 20. iService and settlement of interrogatories. — Inter- rogatories to be annexed to a commission issued under article second of title three of chapter nine of the Code of Civil Procedure shall be served within ten days after the entry of the order allow- ing the commission. Cross-interrogatories shall be served within ten days after the service of the interrogatories, unless a different time is fixed therefor by the order allowing the commission. In case a party shall fail to serve such cross-interrogatories within the time limited therefor, he shall be deemed to have waived his right to propound cross-interrogatories to the witness to be exam- ined under the commission. Either party may, within two days after the service of the cross-interrogatories, or within two days after the time to serve cross-interrogatories has expired, serve upon the opposing party a notice of settlement of the interrogatories and cross-interrogatorieg before a justice of the court or county judge. The time at which such interrogatories or cross-inter- rogatories shall be noticed for settlement shall be not less than two nor more than ten days after the service of the notice. If neither party serves such a notice within the time limited therefor, the interrogatories and cross-interrogatories are to be deemed settled as served, and shall be so allowed without notice." Which motion was adopted. Justice Ingraham moved that Rule 32 be amended so as to read as follows: " Rule 32. Whenever it shall be necessary to malce a case, or a case and exceptions, or a case containing exceptions, the same shall be made, and a copy thereof served on the opposite party within the following times: Peoceedings of the Convention of 1899. 17 " If the trial was before the court or referee, including trials by; a jury of one or more specific questions of fact in an action triable by the court, within thirty days after service of a copy of the decision or report and of written notice of the entry of the judg- ment thereon. " In the Surrogate's Court, within thirty days after service of a copy of the decree or order and notice of the entry thereof. " If the trial were before a jury, within thirty days after notice of the decision of a motion for a new trial, if such motion be made and be not decided at the time of the trial, or within thirty days after service of a copy of the judgment and notice of its entry. " The party served may, within ten days thereafter, propose amendments thereto, and serve a copy on the party proposing the case or exceptions, who may then, within four days thereafter, serve the opposite party with a notice that the case or exceptions with the proposed amendments will be submitted for settlement at a time and place to be specified in the notice, to the judge or referee before whom the cause was tried. " Whenever amendments are proposed to a case or exceptions, the party proposing such case or exceptions shall, before submitting the same to the judge or referee for settlement, mark upon the sev- eral amendments his allowance or disallowance thereof, and shall also plainly mark thereon and upon the stenographer's minutes the parts to which the proposed amendments are applicable, together with the number of the amendment. If the party proposing the amendments claims that the case should be made to conform to the minutes of the stenographer, he must refer at the end of each amendment to the proper page of such minutes. The judge or referee shall thereupon correct and settle the case. The time for settling the case must be specified in the notice, and it shall not be less than four nor more than ten days after the service of such notice. The lines of the case shall be so numbered that each copy shall correspond. The surrogate, on appeal from his court, may by order allow further time for the doing of any of the acts above provided to be done on such appeals. " Cases reserved for argument and special verdicts shall be settled in the same manner. The parties may agree on the facts proven to be inserted in the case, instead of the testimony, on the approval of the judge. 2 18 COUETS OF E.ECOED, " No order extending the time to serve a case, or a case contain- ing exceptions, or the time within which amendments thereto may be served, shall be made unless the party applying for such order serve a notice of two days upon the adverse parties of his intention to apply therefor, stating the time and place for making such application." Which motion was adopted. Justice Ingraham moved that Eule 36 be amended by striking out the words " triable by jury " in the first line thereof, so that said rule should read as follows: " Rule 36. Whenever an issue of fact in any action pending in any court has been joined, and the plaintiff therein shall fail to bring the same to trial according to the course and practice of thes, court, the defendant, at any time after younger issues shall have been tried in their regular order, may move at Special Term for the dismissal of the complaint, with costs. " If it be made to appear to the court that the neglect of the plaintiff to bring the action to trial has not been unreasonable, the court may permit the plaintiff, on such terms as may be just, to bring the said action to trial at a future term. " Whenever in any action an issue shall have been joined if the defendant be imprisoned under an order of arrest, in the action, or if the property of the defendant be held under attachment, the trial of the action shall be preferred. " Every cause placed upon the calendar of the Trial Term or Special Term for the trial of equity cases shall be moved for argu- ment or trial when reached in its order, and shall not be reserved or put over except by the consent of the court unless otherwise permitted by special rule ; and if passed without being so reserved or put over, it shall be entered on all subsequent calendars as of date when passed, and no term fee shall be taxed thereon for any subsequent term." Which motion was adopted. Justice Ingraham moved that Eule 40 be amended by striking out the first paragraph thereof and substituting the word " enumer- ated " in the first line of the second paragraph for the word Peoceedings of the Convention of 1899. 19 " such," and by substituting the word " five " for " eight ""in the second sentence of the rule as amended so that said rule would read as follows : " Rule 40. The papers to be furnished on enumerated motions at Special Term shall be a copy of the pleadings, when the question arises on the pleadings or any part thereof, a copy of the special verdict, return or other papers on which the question arises. The party whose duty it is to furnish the papers shall serve a copy on the opposite party, except upon the trial of issues of law, at least five days before the time for which the matter may be noticed for argument. If the party whose duty it is to furnish the papers shall neglect to do so, the opposite party shall be entitled to move on afiidavit, and on four days' notice of motion that the cause be struck from the calendar (whichever party may have noticed it for argument), and that judgment be rendered in his favor. " The papers shall be furnished by the plaintiff when the ques- tion arises on special verdict, and by the party demurring on the trial of issues of law, and in all other cases by the party making the motion. Each party shall prefix to his points a concise statement of the facts of the case, with reference to the folios; and if such statement is not furnished, no discussion of the facts by the party omitting such statement will be permitted." Which motion was adopted. Justice Ingraham moved that Rule 37 be amended so that the notice of eight days therein be shortened to a notice of five days. Justice Herrick moved as an amendment thereto that the notice should continue to be eight days " except that, where the attorneys for the respective parties reside or have an office in the same city or village, that then the notice may be a notice of five days," which amendment of Justice Herrick was accepted by Justice Ingraham, so that the rule as amended would read as follows : " Rule 37. All questions for argument and all motions made at Special or Trial Terms shall be brought before the court on notice of not less than eight days, unless a shorter time is prescribed by a judge or court, under section 780 of the Code, by an order to show cause, except that where the attorneys for the respective parties 20 CbUETS OF Eecoed, reside or have their offices in the same city or village, such notice may be a notice of five days. If the opposite party shall not appear to oppose, the party making the motion shall be entitled to the rule or judgment moved for, on proof of due service of the notice or order and papers required to be served by him, unless the court shall otherwise direct. If the party making the motion shall not appear, the court shall deny the motion on the filing of the copy, notice of motion, or order to show cause. " Such order to show cause shall in no case be granted unless a special and sufficient reason for requiring a shorter notice than eight days shall be stated in the papers presented, and the party shall, in his affidavit, state the present condition of the action, and whether at issue and, if not yet tried, the time appointed for hold- ing the next Special or Trial Term where the action is triable. An ■order to show cause shall also (except in the first judicial district) be returnable only before the judge who grants it, or at a Special Term appointed to be held in the district in which the action is triable. " No order, except in the first judicial district served after the action shall have been noticed for trial, if served within ten days of the Trial Term, shall have the effect to stay the proceedings in the action, unless made at the term where such action is to be tried, or by the judge who is appointed or is to hold such Trial Term, or unless such stay is contained in an order to show cause returnable on the first day of such term, in which case it shall not operate to prevent the subpoenaing of witnesses or placing the cause on the calendar. " When the motion is for irregularity the notice or order shall specify the irregularity complained of. " This rule, so far as it permits a judgment by default, or by the consent of the adverse party, shall not extend to an action for a divorce, or limited separation, or to annul a marriage. " In the first judicial district all motions must be noticed to be heard at and all orders to show cause must be returnable at the Special Term for hearing of litigated motions except in cases where the special rules of the first judicial district shall require such motion to be made at some other term of the court." Which motion, as amended, was adopted. Peoceedings of the Convention of 1899. 2,1 Justice Ingraham moved to amend Rule 41, so that the said rule would read as follows: " Rule 41. In all cases to be heard in the Appellate Division, except appeals from non-enumerated motions, the papers shall be furnished by the appellant or the moving party, and in cases agreed upon, under section 1279 of the Code, by the plaintiff. " The party whose duty it is to furnish the papers shall cause a printed copy of the requisite papers to be filed in the office of the clerk of the Appellate Division within twenty days after an appeal has been taken or the order made for the hearing of a cause therein, or the agreed case filed in the clerk's office, pursuant to section 1279 of the Code ; but if it shall be necessary to make a case or case and exceptions after the appeal shall have been taken, or the order made for the hearing in the Appellate Division, the papers shall be filed within twenty days after the settlement and filing of the case, and shall serve upon his adversary three printed copies of such papers ; such papers shall consist of a notice of appeal, if an appeal has been taken, a copy of the judgment roll, or the decree in the court below, and the papers upon which it was entered; if no jvidgment was entered, the pleadings, minutes of trial and the order sending the case to the Appellate Division, or the order ap- pealed from, or the papers required by section 12 SO of the Code of Civil Procedure. To these papers shall be attached the case or case and exceptions, if it is to be used in the Appellate Division. All the foregoing papers shall be certified by the proper clerk, or be stipulated by the parties to be true copies of the original. There shall be prefixed to these papers a statement showing the time of the beginning of the action or special proceeding, and of the service of the respective pleadings, the names of the original parties in full, and any change in the parties, if such has taken place. There shall be added to them the opinion of the court below, or an affi- davit that no opinion was given, or, if given, that a copy could not be procured. The foregoing papers shall constitute the record in the Appellate Division. If the papers shall not be filed and served as herein provided by the party whose duty it is to do so, his opponent may move the court on three days' notice, on any motion day, for an order dismissing the appeal, or for a judgment in his favor, as the case may be. 22 CoTJETS OF Eecoed. " The papers in all appeals from non-enumerated motions shall consist of printed copies of the papers which were used in the court below, and are specified in the order, certified by the proper clerk or stipulated by the parties to be true copies of the original, and of the whole thereof. There shall be added to them the opinion of the court below, or an affidavit that no opinion was given, or, if given, that a copy could not be procured. They shall be filed with the clerk within fifteen days after the appeal is taken, and at the same time the appellant shall serve upon his adversary three printed copies thereof. " If the appellant fails to file and serve the papers as aforesaid, the respondent may move, on any motion day, upon three days' notice, to dismiss the appeal." Which motion was adopted. Justice Ingraham moved to amend Rule BQ so as to read as follows : " Rule 56. The referee appointed on such petition must report as to whether a sale, mortgage or lease of the premises (or any and what portion thereof) would be beneficial to the infant, lunatic, idiot or habitual drunkard, and the particular reason therefor, and whether the infant, lunatic, idiot or habitual drunkard is in abso- lute need of having some and what portion of the proceeds of such sale, mortgage or lease, for a purpose provided in section 2348 of the Code, in addition to what he might earn by his own exertions ; and such referee shall also ascertain and report the value of the property or interest to be disposed of, specifically, as to each sepa- rate lot or parcel, and whether there is any person entitled to dower or a life estate, or estate for years, in the premises, and the terms and conditions on which it should be sold. "And the referee's report shall give such further facts as are necessary or proper on the application. " The facts in relation to the value of the property or interest to be disposed of required to be ascertained and reported upon by the referee must be proven on such reference by evidence of at least two disinterested persons, in addition to that of the petitioner, and the report shall not refer to the petition or any other papers for a statement of fact." Which motion was adopted. Peoceedings of the Convention of 1899. 23 Justice Ingraham moved to amend Rule 62 so as to read as follows : " Rule G2, Where lands in the county of New York or the county of Kings are sold under a decree, order or judgment of any court, they shall be sold at public auction, between eleven o'clock in the forenoon and three o'clock in the afternoon, unless otherwise specifically directed. " Notice of such sale must be given, and the sale must be had as prescribed in section 1678 of the Code. " Such sales in the county of ISTew York, unless otherwise spe- cifically directed, shall take place at the Exchange Sales Eooms, Tiow located at No. Ill Broadway, in the city of New York. " The Appellate Division of the Supreme Court in the first tates at the time of making his application; the fact that he has declared his intention to become a citizen is not enough. (Matter of O'Neill, 90 N. Y. 584 [1882].) OflSces distinct. Although candidates for admission to the bar were, before the adoption of the Code of Civil Procedure, admitted as attorneys and counselors at the same time, yet the offices were still distinct. (Easton v. Smith, 1 E. D. Smith, 318 [N. Y. Com. PI. 1852] ; Brady v. Mayor, etc., of New York, 1 Sandf. 569 [N. Y. Supr. Ct. 1848].) Ofdce of public trust within the Constitution.] Whether an attorney or counselor holds as such an office of public trust, within the meaning oi the Constitution, considered. (Seymour v. Ellison, 2 Cow. 13.) Not a State ofEcer.] He is not an officer of the State. (Jlatter of Burchard, 27 Hun, 429 [1882].) An attorney is a public officer within the Nonimprisonment Act, chap. 300 of 1831.] An attorney is a public officer within the provis ons of the act of April 26, 1831, abolishing imprisonment for debt. (Waters v. Whittemore, 22 Barb. 593; Matter of Wood, Hopk. 6. See contra, Matter of Oaths Taken by Attorneys, etc., 20 Johns. 492.) Requirements as to publication of rules as to admission of attorneys, directory.] The requirements of section 57 of the Code of Civil Procedure are merely directory, and a failure to comply with them in regard to the pub- lication of the Coiu't of Appeals rules relating to the admission of attorneys does not render such rules invalid. (Matter of Maxwell, 38 St. Rep. 479 [Supm. Ct. 1891].) Filing certificate nunc pro tunc] A law student cannot file a regents' certificate of examination nunc pro tunc. (Matter of Moore, 108 N. Y. 280 [1888]; Matter of Mason, 140 id. 658 [1833]; Matter of Klein, 155 id. 696 [1898].) STUDY — Course of.] As to the requisite education and course of study, see Court of Appeals Practice by Ed.nund H. Smith. Piules taking effect July 1, 1907, did not require a law school to certify that its studenfs had been graduated or had received a degree, but it is suffiv^ient to stat ■ that the student successfully completed the prescribed course of study duri ij the pericd named. (Matter of N. Y. law School, 190 N. Y. 215.) ADMISSION — Power of Supreme Court over — exclusive.] The p'ineral power over attorneys is exclusively in the Supreme Court. (Willni ut v. Meserole, 16 Abb. [N S.] 308 [N. Y. Supr. Ct. Sp. T. 1875].) The court acts judicially.] Courts, in admitting attorneys ( and expel'ing them from, the bar act judicially, and their decision in sur nro- ceedins-s is subject to review on writ of error or appeal, as the case m " be. (Bradwell v. The State, 16 Wall. 130-135 [1872].) Application for — is a special proceeding — an order denying 't is 36 Courts of Eecobd, [Rule 1 appealable.] Tlie application for admission is a special proceeding, and an order denying the right of the applicant to admission is appealable to the Court of Appeals. (Matter of Cooper, 22 N. Y. 67 [I860]; S. C, 11 Abb. Pr. 301.) For proceedings in Supreme Court, after decision in the Court of Appeals, see 11 Abbott's Practice, 337. — ' — Good character of applicant — decision of Appellate Division of the Supreme Court conclusive.] Where the justices of the Supreme Court pass unfavorably upon the good character of an applicant for admission as an attorney, their decision is not reviewable on appeal. (Ex parte Beggs, 67 N. Y. 120 [1876]; In re Graduates, U Abb. 301, distinguished [Court of Appeals, I860].) Admission to practice denied to attorney from Italy.] An application by a naturalized citizen, who had for more than three years practiced in the higher courts of the kingdom of Italy, for admission to the New York bar, denied, on the ground of the difference between the system of jurisprudence in that country and this. (Matter of Maggio, 27 App. Div. 129 [1898].) REGISTRATION OF ATTORNEYS — Practicing attorneys are required to register.] (See Judiciary Law, § 468.) Filing of an oath nunc pro tunc] The Court of Appeals has no power, on original motion, to order the filing nunc pro tunc of an attorney's oath for the purpose of registration. (Matter of Caruthers, 158 N. Y. 131 [1899].) OATH — Of ofBce.] Each person admitted must, upon his admission, take the constitutional oath of office in open court, and subscribe the same in a roll or book, to be kept in " the office of the clerk of the Appellate Division of " the Supreme Court for that purpose. (Judiciary Law, § 466.) Of allegiance.] The act of Congress of January 24, 1865 (13 Statutes at Large, 424), requiring all persons admitted to practice in the United States Courts to take the oath prescribed by the act of July 2, 1862 (12 Statutes at Large, 502), is unconstitutional. (Ex parte Garland, 4 Wall. 333 [U. S. Sup. Ct. 1866].) DISBARMENT — General power of the court.] The general authority and control of the court over attorneys was not taken away or limited by the Code of Civil Procedure except in the special cases therein mentioned. (In re H , 87 N. Y. 521 [1882].) Power of Appellate Division to disbar attorney — disbarment in addi- tion to criminal prosecution.] The Appellate Division of the Supreme Court has power, under Code of Civil Procedure, section 67, to disbar an attorney for professional misconduct, regardless of a possible or pending indictment. If the charge involves a felony or a misdemeanor entirely distinct from the party's professional action, the court will stay its hand until the criminal trial has taken place; but if the charge involves professional misconduct, the fact that some of the acts complained of are felonies and that indict- ment may follow, is no reason for staying the proceeding to disbar. (Eoches- tfr Bar Assn. v. Dorthy, 152 N. Y. 596 [1897].) Duty of the court.] It is the duty of the court, whenever a case ia Kule 1] Genebal Rules of Practice. 37 presented charging an attorney-at-law with dishonest conduct in his pro- fessional character, and the case is properly proved, to administer the proper punishment by removing him from his office. (In the Matter of Ryan v. Opdyke, 143 N. Y. 528 [1894].) Not used to settle quarrels.] It is not the province of the General Terra of the Supreme Court to interfere in quarrels between a client and his attorney, except where the latter has been guilty of such unprofessional and dishonest conduct as requires his disbarment or discipline in other ways. (Berks v. Hotchkiss, 82 Hun, 27 [1894].) Misappropriation of client's money.] Where attorney is charged with misappropriating money belonging to client and the money is subsequently refunded, the court will not permit the discontinuance of the proceedings, but will appoint a referee to inquire what action should be taken by the court. The court is not to be used merely as a means for the collection by a client of his claim against his attorney. (Matter of Rockmore, 130 App. Div. 586.) Power of court.] Power to disbar an attorney for unfitness is not affected by the fact that the charges upon which disbarment proceedings are instituted rest upon him as an individual apart from professional misconduct. (Matter of Bauder, 128 App. Div. 346.) Powers of reviewing courts.] In a proceeding to discipline an attorney the power of review in the Court of Appeals ends when it appears that the proceeding has been instituted and conducted in accordance with the statutes a:id rules authorizing it; that no substantial legal right of the accused has been violated; that no prejudicial error has been committed in the reception or exclusion of testimony, and that there is some evidence to sustain the findings upon which the order is based. The power and discretion of the Appellate Division in the infliction of punishment when guilt is established are not subject to review in the Court of Appeals. (Matter of Goodman [1910], 199 N. Y. 143.) Punishment and remedy — ^by summary proceedings — not by action.] Where an attorney is in contempt for an act inconsistent with his relation to the court as attorney, and suitors have sustained damage, the remedy as well as the punishment must be by summary proceedings, and not by action. (Foster, Receiver, v. Townshend, 68 N. Y. 203 [Court of Appeals, 1877].) Admission to and removal from practice by Appellate Division] 1. Upon the certificate of the State Board of Law Examiners, that a person has passed the required examination, if the Appellate Division of the Supreme Court in the department in which such person lives shall find such person is of good moral character, it shall enter an order licensing and admitting him to practice as an attorney and counselor in all courts of the State. 2. An attorney and counselor who is guilty of any deceit, malpractice, crime or misdemeanor, or who is guilty of any fraud or deceit in proceedings by which he was admitted to practice as an attorney and counselor of the courts of record of this State, may be suspended from practice or removed from office by the Appellate Division of the Supreme Court. Any fraudulent act or representation by an applicant in connection with his admission shall 38 CouETS OF Kecoed. [Rule 1 be sufficient cause for the revocation of his license by the Appellate Division of the Supreme Court granting the same. 3. Whenever any attorney and counselor-at-law shall be convicted of a felony, there may be presented to the Appellate Division of the Supreme Court a certified and exemplified copy of the judgment of such conviction, and thereupon the name of the person so convicted shall, by order of the court, be stricken from the roll of attorneys. 4. Upon a reversal of the conviction for felony of an attorney and coun- selor-at-law, or pardon by the President of the United States or Governor of this State, the Appellate Division shall have power to vacate or modify such order or debarment. 5. The presiding justice of the Appellate Division making the order of designation of a district attorney within the department to prosecute a case for the removal or suspension of an attorney or counselor, or the order of reference in such cases, may make an order directing the expenses of such proceedings to be paid by the county treasurer of the county where the attorney or counselor removed or suspended, or against whom charges were made as prescribed . in section 476 of this chapter, had his last known place of residence or principal place of business, which expenses shall be a charge upon such county. (Judiciary Law, § 88.) Before an attorney or counselor is suspended or removed as prescribed in section 88 of this chapter, a copy of the charges against him must be delivered to him personally, or, in case it is established to the satisfaction of the court that he cannot be served within the State, the same may be served upon him without the State by mail or otherwise as the court may direct, and he must be allowed an opportunity of being heard in his defense. It shall be the duty of any district attorney within a, department, when so designated by the Appellate Division of the Supreme Court, to prosecute all cases for the removal or suspension of attorneys and counselors. (.Judiciary Law, § 476.) Any person being an attorney and counselor-at-law who shall be convicted of a felony shall upon conviction cease to be an attorney and counselor-at- law, or to be competent to practice law as such. (Judiciary Law, § 477.) Under control of court.] An attorney remains after his disbarment subject to the power of the court which may return to client money wrong- fully withheld. (Matter of Burnham, 58 Misc. 576; Matter of Mcintosh, 112 X. Y. Supp. 513; Matter of Shanley, 57 Misc. 8.) Proceedings proper for.] An order to show cause, founded upon proper papers presented, served with the papers upon the attorney personally, is the proper mode of proceeding. (In re Percy, 36 N. Y. 651 [1867]; Ex parte Eobinson, 19 Wall. 505 [1873].) Court to institute proceedings — proper practice.] An attorney gave notice of a motion at General Term on behalf of his client for the respondent to show cause why an order should not be made striking his name from the roll for certain alleged acts of misconduct set forth in the moving papers. Held, that all proceedings to disbar or suspend attorneys and counselors should originate in the action of the court itself. Every person desiring such investi- Eule 1] Gkneeal Rules of Peactice. 39 gation should, in the first instance, present to the court affidavits or other authentieal papers for its examination preliminary to any proceeding. In a proper case the court will institute the proceedings of its own motion. (In the Matter of Brewster, 12 Hun, 109 [Gen. T. 1877].) The court may act summarily.] The court has power to inquire into the right of an attorney to practice, and to revoke his license in a summary proceeding. (Matter of Burchard, 87 Hun, 429 [1882].) An attorney is not an officer of the State. (lb.) Court will await result of trial.] Where attorney is charged with felony court will await result of criminal trial before disbarring. (Rochester Bar Ass'n v. Dorthy, 152 N. Y. 596.) Commission to take testimony — irregular.] In proceedings to disbar an attorney, the court has not authority, except M-ith the consent of the attorney, to issue a commission to take testimony out of the State. (In the Matter of an Attorney, 83 N. Y. 166 [1880].) Waiver of irregularity.] (As to the right of an attorney to waive irregular proceedings, see Matter of an Attorney, 86 N. Y. 563 [1881].) Unwarranted proceeding to disbar is not a contempt of court.] It seems, that the court has no power to punish as for contempt a client whose application to have his attorney disbarred proved totally unwarranted. (Matter of Dunn, 27 App. Div. 371 [1898].) WHAT JUSTIFIES DISBARMENT. (See causes stated in sections cited, supra. ) A felony forfeits the ofEce.] An attorney and counselor-at-law who shall be convicted of a felonj' shall, upon such conviction, cease to be an attorney and counselor-at-law, or to be competent to practice law as such. Judiciary Law, § 88. See also. Bank of N. Y. v. Stryker, 1 Wheeler's Crim. Cas. 330; Matter of Niles, 48 How. Pr. 246 [N. Y. Com. PI. G<;n. T. 1875].) What crime does not forfeit his ofSce.] A criminal act, subjecting an attorney to indictment, does not work a forfeiture of his oifice, unless the crime is of a base nature. (Bank of N. Y. v. Stryker, 1 Wheeler's Crim. Cas. 330.) A crime, notwithstanding its pardon, may be considered.] Where an attorney has been convicted of forgery and thereafter pardoned by the Gov- ernor, it was held that the pardon did not affect the right of the court to punish him for professional misconduct involved in the offense. (Matter of Attorney, 86 N. Y. 563 [1881].) Bad moral character. ] To warrant a removal, the character must be bad, in such respect as shows the party unsafe and unfit to be trusted with the powers of the profession. When there can be no reliance upon the word or oath of a party, he is manifestly disqualified. (In re Percy, 36 N. Y. 654 [1867].) Changing the verification of a pleading.] An attorney who has changed the verification of a pleading disbarred because thereof. (Matter of Loew, 5 Hun, 462 [Gen. T. 1875].) Use of an undertaking on a second application.] An attorney, without re-execution of an undertaking, presented it to another court after it had been 4:0 Courts of Kecoed. [Rule 1 used upon an unsuccessful application. Held, that said attorney should be sus- pended for two years for his misconduct. (Matter of Goldberg, 61 St. Rep. 277 [Supm. Ot. 1894].) Fraudulently imposing upon the court is good ground for suspension from practioe.] The interposition by an attorney-defendant, as a counterclaim, of a cause of action of which he had procured an assignment to himself, and which had been merged in a judgment entered upon stipulation in a former action in which he had been an attorney and so imposing upon the court, and the concealment of a material fact in the cause, which was a fictitious con- troversy, and both sides of which he controlled, held to be sufficient cause for suspending him for two years. (Matter of V , 10 App. Div. 491 [1898].) Deceit or malpractice.] Facts sufficient to sustain an -order of disbar- ment on the ground of deceit or malpractice. (Matter of Randel, 158 N. Y. 216 [1899]; Ex parte Loew, 5 Hun, 462 [Gen. T. 1875].) Deceit, defined.] The use of the word " deceit " in section 67 of the Code of Civil Procedure, in regard to the disbarment of attorneys, implies wrong Insinuations or the concealment of facts with intent to mislead the court or injure persons on the part of an attorney while acting professionally. (Matter of Post, 26 St. Kep. 640 [Supm. Ct. 1889].) Malpractice, defined.] The use by an attorney of methods and practices unsanctioned and forbidden by law is defined by the word malpractice in ref- erence to lawyers, and means evil practice while acting professionally. (Mat- ter of Baum, 30 St. Rep. 174 [Supm. Ct. 1890].) Deceit, practiced in his character as such, though not in a suit.] If deceit ia practiced by a solicitor in his character as such, although not in a suit pending in the court, he may be removed from his office as solicitor. (Matter of Peterson, 3 Paige, 510 [1832].) Failure to pay over money.] An attorney should be disbarred who has several times by summary order been directed to pay over money in his hands, arid who, in a criminal proceeding, has retained money given him to settle such proceeding, and who has unlawfully possessed himself of mortgaged chat- tels and has been found guilty of other fraudulent acts. (Matter of Titus, 50 St. Rep. 636 [Supm. Ct. 1892].) — — Deceiving client.] Attorney who to secure his fee settles with a party against whom he was retained to enforce claims and assigns his contracts with his clients to enforce such claims and notifies them to settle directly with the other party, held guilty of malpractice. (Matter of Clark, 184 N. Y. 222.) Using funds belonging to estate.] Using funds belonging to estate and borrowing money from administrator, etc., held to warrant suspension. (Mat- ter of Freedman, 113 App. Div. 327.) Purchasing fraudulent certificate.] Attorney who by fraud and deceit procured his admission to practice by purchasing certificate that he had been admitted in the courts of New Jersey, and on which a court seal had been falsely imposed, disbarred. (Matter of Leonard, 127 App. Div. 492.) Payment of money for adjournments of court, etc.] Attorney who paid money to an assistant clerk of court for adjournments, etc., disbarred. (Mat- ter of Boland, 127 App. Div. 746.) Kule 1] Geneeal Kules of Practice. 41 Concealment of fact of conviction.] Concealment by foreign attorney applying for admission in this State of the fact that he had been convicted of a crime in such foreign State calls for disbarment; and it does not affect the result that he was pardoned unconditionally by the Governor of the foreign State or that hia conviction was subsequently decided to be unjust. (Matter of Pritchett, 122 App. Div. 8.) Frauds upon clients.] Attorney who verified and filed objections to the probate of a will against the wishes of his client, suspended for two years. (Matter of Randall, 122 App. Div. 1.) Attorney disbarred for obtaining possession and control of property belong- ing to an insolvent client in fraud of creditors, for effecting the security of a single client in violation of the Bankruptcy Act, and for perjury and sub- ornation of perjury in the bankruptcy proceedings. (Matter of Joseph, 135 App. Div. 589.) Attorney disbarred because when retained on a contingent fee he continued to prosecute the trial of an action and asserted his client's right to a verdict after having discovered that the case was founded upon perjured evidence. The rule that a person cannot be convicted upon the uncorroborated testi- mony of an accomplice does not obtain in its strictness in a proceeding to disbar an attorney. (Matter of Hardenbrook, 135 App. Div. 634.) Attorney disciplined by suspension from practice for two years for fraud and chicanery, in that he drew an answer denying knowledge of facts which were true to his own knowledge, attempted to induce the court to accept false answers to impede a recovery of judgment where there was no defense, and drew deeds whereby hia client attempted to place Iiis property beyond the reach of creditors. (Matter of Goodman, 135 App. Div. 594.) Attorney disbarred for expending on his own account moneys collected for his client and concealing from the latter the fact that the same had been collected. (Matter of Gifuni, 137 App. Div. 361.) Attorney disbarred for obtaining money upon the false representation that he had been retained in an action, and for converting the sum so obtained to his personal use. (Matter of Andrews, 137 App. Div. 353.) Taking testimony upon written interrogatories.] Proceeding to disbar an attorney is a special proceeding, and the Appellate Division has the power under section 888 of the Oode of Civil Procedure to issue a commission on the application of parties moving for a disbarment to take teatmony upon written interrogatories. (Matter of Spencer, 137 App. Div. 330.) Regularity of criminal prosecution will not be inquired into.] The regularity of a criminal prosecution wherein an attorney was convicted of mur- der in the first degree by a court of competent jurisdiction will not be inquired into on a motion to strike his name from the roll of attorneys. (Matter of Patrick, 136 App. Div. 450.) To aid in manufacturing evidence tending to deceive.] The fact that an attorney aids in manufacturing evidence which, though not absolutely false, tends to deceive, will justify his disbarment. (Ex parte Gale, 75 N. Y. 526 [1879].) As to the necessity for proof of a fraudulent motive to justify disbarment, see note to 18 L. R. A. 401. 42 CoDETS OF Recoed. [Rule 1 WHAT IS NOT PUNISHED BY DISBARMENT — Instituting without cause proceedings to disbar another attorney — he is chargeable with costs.] When an attorney, from improper motives and without jus,t cause, institutes pro- ceedings to procure the removal from the bar of another attorney, he is prop- erly chargeable with the costs and disbursements incurred in such proceedings. (In the Matter of Kelly, 62 N. Y. 198; S. C, 3 Hun, 636 [Gen. T. 1875].) Writing to judge who tried case.] Writing to justice who tried case, complaining of his conduct and by inference reflecting on the integrity of the court, held highly objectionable but not warranting greater punishment than reprimand. (Matter of Manheim, 113 App. Div. 136.) Scandalous matter in pleading. The responsibility for the insertion of irrelevant and scandalous matter in pleadings rests upon the attorney prepar- ing the same and he is chargeable with the costs of a motion to have such matter stricken therefrom. (McVey v. Cantrell, 8 Hun, 522 [Gen. T. 1876].) Action by, as a party, not ground for his disbarment.] Acts committed by an attorney as a party to a suit do not afford grounds for his disbarment. (Matter of Post, 26 St Eep. 640 [Supm. Ct. 1889].) Double punishment.] The disbarment of an attorney for acts committed as a party to a suit, and for which he has paid the penalty, would be a double punishment and should not be inflicted. (lb.) An attorney taking vexatious proceedings for delay, censurable.] When, in u criminal case, all the forms of law have been observed and the defendant has had every opportunity to make his defense, and his conviction has been affirmed by the highest court of the State, the contest in the courts should end. As to whether, it being the duty of attorneys and counselors of the courts of this State to aid in the administration of justice, if they in such case engage in vexatious proceedings, merely for the purpose of undermining the final judg- ment of the courts and defeating the law, they do not expose themselves to the disciplinary power of the Supreme Court, qucere. (People of the State of New York v. Jugho, 128 N. Y. 589 [18«1].) Imprisonmient for the non-payment of a fine.] Upon the failure of the attorney to pay the amount of costs and disbursements awarded against him. a precept may lawfully issue committing him to the county jail until such payment be made. (In the Matter of Kelly, 62 N. Y. 198; S. C, 3 Hun, 636 [Gen. T. 1875].) Return of records by — how enforced.] How an attorney should be compelled to return an affidavit taken from the clerk's office. (Wood v. Kroll, 43 Hun, 328 [Gen. T. 1887].) Actions and conduct held censurable.] Making affidavits upon which he secured extension of time to serve complaints in actions which he had been instructed to discontinue, held sufficient to warrant suspens,ion from practice for one year. (Matter of Hanses, 120 App. Div. 377.) Attorney admonished but not suspended for allowing collecting agency to send out under his name dunning letters containing false statement that an action had been brought against the debtor. (Matter of Hutaon, 127 App. Div. 492.) Act of attorney in inducing complainant to withdraw a charge of petit lar- Eule 1] Geneeal Rules of Peactice. 43 <.-€nj by the payment of money held censurable. (Matter of Woytisek, 120 App. Div. 373.) Fact that an attorney when testifying upon a criminal trial against a third person refuses to answer certain questions on the ground that the answers might tend to incriminate him will not justify his disbarment. (Matter of Ivaffenburgh, 188 N. Y. 49.) Attorney not responsible, when acting as agent for client, for debts con- tracted. (Argus Co. V. Hotchkiss, 121 App. Div. 378.) Conduct of an attorney in hiring " ambulance chasers " at a percentage of the fee obtained by the attorney from the cases thus obtained is a violation of the Code and of the Penal Law, although he paid the same person a regu- lar salary for services in investigating cases, and preparing them for trial. (Matter of Shay, 133 App. Div. 547.) Attorney proceeded against can only be convicted upon evidence good at common law, given, if he chooses, in his presence by witnesses subject to cross- examination. (Matter of Joseph, 125 App. Div. 544.) READ MISSION TO PRACTICE — Application for.] An application for leave to resume practice by an attorney who was disbarred on the ground that he had been convicted of a crime must be determined under the law as it existed when the conviction took place; and under the statute as it existed in l-v^7 the attorney has the right to show that the crime of which he was found guilty was one involving no moral turpitude or any other circumstance show- ing that the fact of conviction alone should not be deemed sufficient cause for his removal. (Matter of Darmstadt, 35 App. Div. 285 [1898].) REVIEW — Order suspending an attorney — how far reviewable by the Court of Appeals.] An order of the General Term suspending an attorney is review- able in the Court of Appeals. The measure of punishment is within the dis- cretion of the court below, but the adjudication of guilt or innocence upon the facts is reviewable. (In re Eldridge, 82 N. y. ICl [1880]. See Broadwell v. The State, 16 Wall. 130-135 [1872].) ^Decision by General Term — not reviewable in Court of Appeals.] The decision of the General Term denying, with costs, an application to. disbar an attorney is not reviewable in the Court of Appeals. (In the Matter of Kelly, 59 N. Y. '595 [1875].) WHO CANNOT PRACTICE — Judges not allowed to practice.] No judicial officer, except justices of the peace, shall receive to his own use any fees or perquisites of office, nor shall any judge of the Court of Appeals or justice of the Supreme Court, or any county judge or surrogate hereafter elected in u coimty having a population exceeding 120,000, practice as an attorney or coun- selor in any court of record in this State or act as referee. (Art. &, § 20, Const, amend, of 1894. See, also, Seymour v. Ellison, 2 Cow. 13.) New York city — none but attorneys to practice in.] See Code of Civil Procedure, § 63; Judiciary Law, § 271.) A judge — the partner of a judge and a judge's clerk — cannot practice in his court.] (See Code of Civil Procedure, §§ 49, 50; Judiciary Law, § 741.) Partner of district attorney, or other public prosecutor, not to defend.] (See Code of Civil Procedure. § 78; Judiciary Law, § 278.) 44 CouETS OF Eecobd. [Eule 1 Public prosecutor — when unable to act — punishment.] (See Code of Civil Procedure, § 79; Judiciary Law, § 278.) Surrogate not to practice.] (Code of Civil Procedure, | 2495. See art. 6, § 20, Const, of 1894.) Surrogate's clerk, or other person employed in surrogate's ofiSce, not to practice before the surrogate.] (Code of Civil Procedure, § 2509.) A surrogate's father or son not to practice before him, or be employed as an attorney.] (See Code of Civil Procedure, § 2529; Judiciary Law, § 472.) Constable, law partner or clerk of justice cannot practice before the justice.] (See Code of Civil Procedure, § 2889; Penal Law, §§ 271, 272.) Sheriff's, etc.] A sheriff, under sherifT, deputy sheriff, sheriff's clerk, constable, coroner, crier or attendant of a court shall not, during his continu- ance in office, practice as an attorney or counselor in any court. (See Code of Civil Procedure, § 62; Judiciary Law, § 473.) Clerk, etc.] The clerk, deputy clerk or special deputy clerk of a court shall not, during his continuance in office, practice as an attorney or counselor in (hat court. (See Code of Civil Procedure, § 61; Judiciary Law, § 250.) Constitutional right — citizen of another State.] A citizen of another State has not a right under the Constitution to practice. (Matter of Henry, 40 N. Y. 560.) Right to practice not protected by United States Constitution.] The right to practice in the State courts is not a privilege or immunity of a citizen of the United States, within the meaning of the first section of the Fourteenth Amendment of the Constitution of the United States. (Bradwell v. The State, 16 Wall. 130 [1872].) Nonresidents — cannot practice.] An attorney-at-law who is a non- resident of this State has no authority or right to, and cannot practice in the courts of this State. (Richardson v. Brooklyn City & Newton R. R. Co., 22 How. 368 [Sp. T. 18(52].) Nonresidents — may practice in this State, when.] A person regu- larly admitted to practice as attorney and coun-elor in the courts of record of the State, whose office for the transaction of law business is within the State, may practice as .s,ueh attorney or counselor, although he resides in an adjoining State. But service of a paper which might be made upon him at his residence, if he was a resident of the State, may be made upon him by depos- iting the paper in a post office in the city or town where his office is located, properly inclosed'in a post-paid wrapper, directed to him at his office. A serv- ice thus made is equivalent to personal service upon Idm. (See Ck>de of (Tivil Procedure, § 60; Judiciary Law, § 470.) An alien cannot be admitted.] An alien cannot be admitted to practice law as an attorney and counselor-at-law in this State. (In re O'Neill, 90 N. Y. 584 [1882].) Punishment.] All persons are punishable for assuming to be officers, attorneys, solicitors ■ or counselors of any court, and acting as such without authority. (Code of Civil Procedure, § 14, subd. 4. See Judiciary Law, § 753.) A district attorney and his partner and a public prosecutor, when punish- able to taking part in an action. (iSee Code of Civil Procedure, § 80; Penal Law, § 278.) Eula 2] General Rules of Pkactice. 46 — Action against attorney by client for unauthorized settlement.] Plain- tiff must establish that the settlement was unauthorized, the validity of the claim and that it waa worth more than the amount collected thereon. (Vorth V. McEachen, 181 N. Y. 28 [1905].) Effect of appearing by one forbidden to practice.] Attorney who sends someone who is forbidden to practice to appear for him in an action cannot afterwards raise that question as to an act of such a person. (Kerr v. Walter, 104 App. Div. 45.) Corporations — may not practice law.] Practice of the law is not a law- ful business for a corporation to engage in. (Matter of Co-operative Law Co., 198 N". Y. 479, affg. 136 App. Div. 901.) UNITED STATES COURTS —Attorneys and counselors of.] Attorneys and counselors of the United States courts are not officers of the United States, but are officers of the court, admitted as such by its order upon evidence of their possessing sufficient legal learning and fair private character. (Ex parte Garland, 4 Wall. 333.) As to change of attorneys, see notes under Rule 10. As to appearance by attorneys, see notes under Rule 9. RULE 2. Papers — Where Filed — Change of Venue — Indorsements. The papers, in cases pending in the Appellate Division, shall be filed with the clerk of such division of the department in which the case is pending. In all other cases where no provision is made by the Code, papers in the Supreme Court shall be filed in the office of the clerk of the county specified in the complaint as the place of trial. In Surrogates' Courts, in the office of the surrogate; in other courts of record, in the office of the respective clerks thereof. In case the place of trial be changed to another county, all sub- sequent papers shall be filed in the county to which such change is made. All papers served or filed must be indorsed or sub- scribed with the name of the attorney or attorneys, or the name of the party if he appears in person, and his or their office ad- dress, or place of business. Rule 3 of 1858, amended. Rule 3 of 1871. Rule 3 of 1874, amended. Rule 2 of 1877, amended. Rule 2 of 1880. Rule 2 of 1884. Rule 2 of 1888, amended. Rule 2 of 1896. CODE OF CIVIL PROCEDURE. § 23. Writs and other proce.ss issued out of courts of record, to be returned to the clerk. J 344. Where an action is removed from County Court to Supreme Court — papers on file to be transmitted. 46 CouETs OF E.ECOED. [Rule 2 I 562. Papers on order of arrest must be filed. § 500. Order of arrest with papers accompanying it and his return must be filed by the sherifl:' within ten days. § 626. Afiidavit used on obtaining an order vacating an injunction must be filed. § 639. Affidavits on attachment to be filed within ten days. § 726. Where original pleading or paper is lost or withheld — how supplied. § 816. Bonds and undertakings to be filed with the clerk of the court. § 824. Summons and pleadings to be filed with clerk within ten days after service. $ 825. Papers in special proceedings — where to be filed. I 988. Change of place of trial- — duty of clerk to deliver papers. I 989. When an order changing the place of trial takes effect — appeal therefrom. § 990. Issue of law — where triable — judgment on, where to be filed. § 1010. Decision of an issue tried by the court must be filed within twenty days after the final adjourmnent of the term. § 1019. Eeferee's report must be filed or delivered to prevailing party witMn sixty days after the final submission. § 1237. Judgment roll to be filed with the clerk. § 1239. Time of filing judgment roll to be noted on it by the clerk. § 1672. Lis pendens to be recorded and indexed. § 1715. Sheriff, in action of replevin, to file return, § 1820. Bond of guardian, suing for his ward's legacy, must be filed. § 1895. Proof of service of summons in an action for a penalty. § 3367. Condemnation proceedings — the decision on issues arising therein is to be filed or delivered to prevailing party within twenty days after final submission. § 3372. Offer to purchase must be filed ten days before service of the petition. See notes to Rules 3 and 4. FILING PAPERS — What is a filing.] The mere coming of a remittitur to the hands of the clerk of the court below is not an actual filing. This was so held where the clerk on being served with a stay handed the remittitur back to the attorney, without having marked it filed, and refused to file it. (See Cush- man v. Hadfield, 15 Abb. Pr. [N. S.] 109, and note [Ct. of App. 1873].) Who may file a paper.] Where the office being vacant a person in charge received a paper and marked it filed, etc., it was held to be a valid filing. (Bishop V. Cook, 13 Barb. 326 [Gen. T. 1850].) Where a motion is made out of court on notice.] AVhen a motion is made before a judge out of court upon notice, it is the duty of the respective attorneys to file the papers used by them on such motion. (Savage v. Relyea, 3 How. Pr. 276; S. C, 1 Code R. 42 [Sp. T. 1848].) Motion after judgment — papers, where filed.] The papers used upon a motion made after the entry of a final judgment in the action, together with the order made thereon, must be filed in the office of the clerk of the county where the judgment was entered, within ten days, or the order may be set aside as irregular. Curtis v. Greene, 28 Hun, 294 [1882].) Rule 2] Genebal Rules of Peactice. 47 — — Judgment on appeal — papers, where to be filed.] Where the defendants entered judgment of nonsuit, and filed the roll in Ulster county, the county named in the complaint, and on appeal to the General Term at Albany, the judgment was aflirmed, and the defendants entered judgment and filed another roll in Albany county, held, that the latter judgment was irregular. (Andrews V. Durant, 6 How. Pr. 191 [Sp. T. 1851]; S. C, 1 Code K. [N. S.] 410.) Filing — how compelled.] An attorney will be compelled to do so upon A mere suggestion, and the defendant cannot object that the filirig of the affidavit will criminate him. (Anonymous, 5 Cow. 13 [1825].) Costs allowed on a motion to compel the filing of a paper.] Costs may be allowed on an ex parte motion to compel the filing of a pleading where the party omits to file it after service of a notice requiring him to do so. (Lang- bein v. Gross, 14 Abb. Pr. [N. S.] 412 [Com. P. Sp. T. 1873].) Presumption as to filing, as regards notice of lis pendens — not in- dulged.] The rule of Us pendens is not a favorite of the court, and it will not be presumed in order to sustain a, notice of the pendency of an action that a complaint was filed prior to the entry of judgment. (Leitch v. Wells, 48 N. Y. 586 [1872].) Records delivered to clerk before nine presumed to be filed at nine.] Records of judgments delivered to the clerk to be filed before the hour of nine o'clock in the morning will be considered as filed at the hour of nine. (Wardell V. Mason, 10 Wend. 573 [1833]; France v. Hamilton, 26 How. Pr. 180 [Gen. T. 1862].) (See as to filing judgments and issuing executions thereon out of office hours, Hathaway v. Howell, 54 N. Y. 98 [1873].) Notice of filing — when not necessary.] Where a party files a pleading in pursuance of an order of tlie court, he is, not bound to notify the party who obtained the order that the pleading is filed. (Douoy v. Hoyt, 1 Code R. [N. S.] 286 [N. Y. Cora. P. Sp. T. 1852].) Entry of judge's order not necessary.] As a rule, an ex parte order of a judge need not be entered, although the papers should be filed. (Albrecht v. Canfield, 92 Hun, 240 [1895].) Entering and filing distinguished.] There is a material difference be- tween entering and filing an order. When filed without the signature of the clerk, there is no entry of it. (Selley v. Irish Indust. Exposition, 53 Misc. 46.) FAILURE TO FILE — Effect of.] On motion to set aside an order for a defect in the affidavits, if it appears that a sufficient afladavit was used on the hearing of the motion, though not filed, the order should not be set aside. (Vernam v. Holbrook, 5 How. Pr. 3 [Sp. T. 1850] ; Curtis v. Greene, 28 Hun, 294 [1882].) Rights of the unsuccessful party.] If a party entitled to enter an order fails to do so within twenty-four hours after the decision has been made, any party interested may have it drawn up and entered. (Peet v. Cowenhoven, 14 Abb. Pr. 56 [Chamb. 1861]; Matter of Rhinebeck & Conn. R. R. Co., 8 Hun, 34 [Gen. T. 1870].) Injunction dissolved — when papers were not filed.] An injunction dis- solved on the ground that the papers had not been filed as required by the 48 Courts of Reooed, [Eule 2 rules. (Johnson v. Caaey, 28 How. Pr. 492 [N. Y. Supr. Ct. Sp. T. 1865].) The court may grant relief. (Leffingwell v. Chave, 5 Bosw. 703 [Supr. Ct. Sp. T. 1860] ; 19 How. Pr. 54; 10 Abb. 472.) An attachment not vacated because of a failure to file the papers on which it was granted.] An attachment will not be vacated as a matter of course for the failure to file within ten days the papers on which it was issued. (Woodward v. Stearns, 10 Abb. Pr. [N. S.] 395 [N. Y. Com. P. Sp. T. 1871]; Brash v. Wielarski, 36 How. Pr. 253 [N. Y. Supr. Ct. Sp. T. 1868].) LEAVE TO FILE AFTER THE TIffllE — Power of the court to allow a paper to be filed after the time allowed therefor has expired.] The court has power to permit a plaintiff to file a reply after the time limited in an order which required him to file it or directed that it be deemed abandoned, where the omission is explained, e. g., where a copy by inadvertence was filed instead of the original. (Short v. May, 2 Sandf. 639 [1849].) An answer may be inserted in the judgment-roll after the roll has been filed.] A judgment-roll may be amended by attaching a copy answer when the answer has been omitted when it was made up. (Renouil v. Harris, 1 Code R. 125 [N. T. Sup. Ct. 1849].) Filing papers nunc pro tunc] Where papers in an order for service by publication were delivered to the clerk and he retained them in his, possession instead of filing them, a subsequent order on the making up of the judgment- roll directing the filing of the papers nwnc pro tunc was the proper method of correcting the record. (Fink v. Wallach, 109 App. Div. 718.) INDORSEMENT — Must be on the copy as well as on the original.] It ia not sufficient that the indorsement be made on the original order only. It must also be made on the copy served. (Dent v. Watkins, 49 How. Pr. 275 [Chamb. 175]. See, however, Forward v. French, 52 id. 88 [Sp. T. 1876].) ■ Essential on notice to limit time to appeal.] A notice of the entry of judgment which is not indorsed or subscribed both with the name of the attor- ney and his office address or place of business is irregular and ineffectual to limit the time to appeal. (Kelly v. Sheehan, 76 N. Y. 325 [1879].) Indorsement concealed.] A notice of the entry of a judgment or order, to be effective to limit the time to appeal, must be so given that it would be negligence to fail to observe it; and an indorsement so made that it is con- cealed when the cover is folded, so that it is possible to open and read the order without discovering the notice of entry, is, insufl[icient. (Weeks v. Coe, 36 App. Div. 339 [1899].) The omission to indorse does not vitiate the paper — it is merely an irregularity.] The omission to indorse upon a paper served the post office address or place of business of the attorney aa required by the General Rules of Practice (No. 2) does not necessarily vitiate either the paper or the service; it ia a mere irregularity, and the party served may either return the paper or move to set it aside. After receiving it without objection, however, he cannot safely disregard the functions which the paper ia designed to perform. (Evans V. Backer, 3 How. Pr. [N. S.] 504; 101 N. Y. 289 [1886].) What is a sufficient indorsement.] Where, upon a copy of a judgment served, was indorsed the name of the attorney with his post office address and Rule 3j General. Rules of Practice. 49 business address, and below was indorsed a notice of judgment, signed by the attorney, without giving any address, held that this was a sufficient compli- ance with Kule 2. (People ex rel. W. V. R. R. Co. v. Keator, 101 N. Y. 610 [1885]; Falker v. N. Y., W. S. & B. E. Co., 100 id. 86 [1885].) Admission of due and proper service — waives the defect of omitting the address of the attorney.] An admission of " due and proper " s,eryiee of a judgment and notice of entry thereof constitutes a waiver of a defect in the notice of entry consisting in the omission of the attorney serving it to sub- scribe thereto his office address as well as his name. (Patterson v. McCann, 23 N. Y. Weekly Dig. 70 [Supreme Court, Gen. T. 1886].) ——Filing — how compelled.] A judgment debtor may compel the creditor's attorney to file an order for the examination of a third party in supplementary proceedings, although the judgment has itself befiu paid and the judgment cred- itor has obtained an order discontinuing the proceeding against the third person, and although the order and affidavit upon which if was granted may tend to criminate the person who obtained it. (Sinnott v. First National Bank, 34 App. Div. 161 [1898].) Meaning of "resided" in section 984 of Code of Civil Procedure.] The word " resided " means a permanent residence, one's home, as distinguished from a mere stopping place. It is nearly synonymous with " domicile." (Wash- ington V. Thomas, 103 App. Div. 423.) DESTRUCTION OF RECORDS — Power to destroy records only exercised in exceptional cases.] The power of the court to remove its records from the clerk's office, for the purpose of destruction, should only be exercised in excep- tional cases, as in ease of mistake or of irrelevant and scandalous accusations. (Schecker v. Woolsey, 2 App. Div. 52 [1896].) Office hours in county clerk's office.] (See note under Rule 8.) HUIE 3. Motion Papers to be Specified in Order — Where Filed — Effect of Non-filing — Entry of Order. When any order is entered, all the papers, used or read on the motion on either side, shall be specified in the order, and shall be filed with the clerk, unless already on file or otherwise ordered by the court, or the order may be set aside as irregular, with costs. The clerk shall not enter such order unless the motion papers are filed, and unless the order is signed by the justice presiding at the court at which the motion was heard. When an opinion has been delivered by the court, it shall be filed with the order and shall be considered a part of the record upon which the order was made ; and if the order does not state the grounds upon which it was made, the opinion may be considered to ascertain such grounds. When the affidavits and papers upon a non-enumerated motion 4 50 CoTJETS OF Eecoed. [Rule 3 are required by law or by the rules of tbe court to be filed, and the order to be entered in a county other tban that in which the motion is made, the clerk shall deliver to the party prevailing in the motion, unless the court shall otherwise direct, a certified copy of the rough minutes, showing what papers were used or read, together with the affidavits and papers used or read upon such motion, with a note of the decision thereon, or the order directed to be entered, properly certified. It shall be the duty of the party to whom such papers are delivered to cause the same to be filed, and the proper order entered in the proper county within ten days thereafter, or the order may be set aside as irregular, with costs. Rule 3 of 1858, amended. Rule 3 of 1871, amended." Rule 7 of 1S71, amended. Rule 4 of 1874, amended. Rule 7 of 1874, amended. Rule 3 of 1877, amended. Rule 3 of 1880. Rule 3 of 1884. Rule 3 of ISdS, amended. Rule 3 of 1896. Rule 3 as amended, 1910. CODE OF CIVIL PROCEDURE. § 768. An application for an order is a motion. § 769. Where motions in the Supreme Court are to be heard. § 770. To whom motions may be made in New York city. § 771. Motions may be transferred. § 772. What judges may take orders out of court. § 773. Limitation as to orders made by county judges. § 774. Order made by a judge not of the court in which the action is brought — how reviewed. § 775. Stay of proceedings — duration of. § 776. Wlien a second application for an order must be made to the same judge. § 777. An application for judgment cannot be withdrawn without permis- sion — subsequent application. § 778. Penalty for violating the two last sections. § 779. Costs of motions — how collected. § 780. Notice of motion to be eight days. § 3343, subd. 20. The word " order " refers to an order made in a civil action or special proceeding. ORDER — Definition of.] The provision of the Code which declares "every direction of a court or a judge made or entered in writing," is to be " denom- inated an order," so far as regards appeals therefrom, properly includes only mandates on parties or officers on final determination of rights. Every deci- sion or resolution of a court or judge does not become an order by being put in writing when otherwise it would not be. (Howard v. Freeman, 6 Robt. 511 [Gen. T. Supr. Ct. 1866].) Rule 3] General Eules of Practice. 51 Order to be submitted to adverse party before being entered.] Where an order is special in its provisions, the party entitled to draw up the same should submit a copy thereof to the adverse party, that he may propose amendments thereto before it is submitted to the register to be settled and entered. (Whitney v. Belden, 4 Paige, 140 [1833].) Duty of attorney, not of judge, to see that the order is proper.] It i.* the duty of the attorney and not of the judge to see that an order taken is not too broad for the case on which it is founded. {La Farge v. Van Wagenen, 14 How. Pr. 57 [Sp. T. 1857].) Order, by whom entered.] An order must be entered by the prevailing party with the clerk of the county where the papers are filed. (Savage v. Relyea, 3 How. Pr. 276 [Gen. T. 1848] ; S. C, 1 Code R. 42.) ——When the unsuccessful party may enter the order.] The unsuccessful party can enter the order when the successful party neglects to do so for twenty-four hours. (Peet v. Cowenhoven, 14 Abb. Pr. 56 [Chamb. 1861]; Matter of Eiinebeck & Conn. R. R. Co., 8 Hun, 34 [Gen. T. 1876].) Duty of the clerk to enter the order — party not prejudiced by his failure to do so.] It is the duty of the clerk to enter orders of the court, and his delay or omission to make actual and speedy entry of orders in the minutes will not be allowed to prejudice the substantial rights of parties. (People v. Central City Bank, 53 Barb. 412 [1867].) Entry of — during session of court.] It is not necessary to the validity of an order of the Court of Sessions, transferring an indictment to the Court of Oyer and Terminer, that it should be entered during its session. (People V. Myers, 2 Hun, 6 [1874].) ^Decision ineffectual until order entered — date to be that of entry of order.] Neither party can have any benefit from a decision of the court until the order upon such decision is drawn up and perfected, and where it is material to either party the caption or date should be made to correspond with the time of the actual entry of the order. (Whitney v. Belden, 4 Paige, 140 [1833].) An order vacating an injunction must be served and the papers used must be filed before it takes effect. (Code of Civil Procedure, § 626.) Appeal proper, only after order entered and papers filed.] An appeal will not lie from an order untU it is entered and the motion papers are filed with the clerk. (Smith v. Dodd, 3 E. D. Smith, 215 [Gen. T. Com. P. 1854] ; Star Fire Ins. Co. v. Godet, 2 J. & S. 359 [Gen. T. Supr. Ct. 1872] ; Plato v. Kelly, 16 Abb. 188 [Gen. T. 1862] ; Gait v. Finch, 24 How. Pr. 193 [Gen. T. 1862]; MarshaU v. Francisco, 10 id. 147 [Gen. T. 1854]. See Code Civ. Pro. § 1304.) Chamber order — must be filed in the department in which the appeal is taken.] Where a chamber order is made in one department, in an action pending in another department, no appeal therefrom will lie in the latter department until the order has been entered there. (Clinch v. Southside R. R. Co., 2 Hun, 154 [1874]; Hoffman v. T'redwell, 5 Paige, 83 [1835]: Whitney v. Belden, 4 id. 140 [1834].) Appeal from chamber order of county judge — proper, only after entry 52 CouETs OF Record. [Rule 3 of the order.] An appeal from a chamber order of a county judge can only be taken after the order has been entered in the county clerk's office. (Pool V. Safford, 10 Hun, 497 [Gen. T. 1877]; Whitaker v. Desfoase, 7 Bosw. 678 [Gen. T. Supr. Ct. 1861].) A chamber order need not be entered.] An order granted by a judge at chambers, ex parte, need not be entered with the clerk, but may be dis- regarded, unless the affidavit used on the motion, or a copy thereof, is served with a copy of the order. (Savage v. Relyea, 3 How. Pr. 276; S. G., 1 C!ode Reporter, 42 [Sp. T. 1848].) Order signed by county judge on a County Court caption, a chamber order.] Where a petition for the appointment of a guardian ad litem for an infant plaintiff is addressed to the county judge, but the order for the appoint- ment is entitled as having been made at a term of the County Court, the court will disregard the caption of the order and hold the order valid upon the assumption that the coimty judge acted in the capacity in which he was called upon to act and in which he had a right to act. The fact that the order was entered as an order of the County Court does not estop the plaintiff from asserting its true character, as the validity of an order does not depend upon the form of its entry. (Albrecht v. Canfield, 92 Hun, 240 [1895].) Recital in order.] A party is entitled to have recited in an order all the papers used by him or his adversary on the motion, unless there is scan- dalous matter, which the court is authorized to strike out. (Deuterman v. Pollock, 36 App. Div. 522 [1899].) To specify papers read.] The requirement that the order on a non- enumerated motion shall specify all the papers used or read on the motion, is complied with by a statement that the motion was made upon all the papers and proceedings in the action. (Hobart v. Hobart. 85 N. Y. 637 [1881]. See, however, Deutermann v. Pollock, 36 App. Div. 522 [1899].) What is too indefinite.] A recital in the words "and on all papers and proceedings herein " is too indefinite. (Faxon v. Mason, 87 Hun, 139 [1895].) An order should recite all papers used on the motion.] A party appear- ing upon a motion is entitled to have recited in the order disposing of the motion all of the papers used by him or his adversary thereon. (Deutermann V. Pollock, 36 App. Div. 522 [1899].) Conditions when not imposed on a failure to recite in the order and to file an affidavit used on a motion.] Where an important affidavit made upon a motion has neither been recited in the order made on such motion, nor filed, nor made part of the record, and a sufiicient excuse is shown therefor, it is improper to impose, as a condition of allowing it to be recited in the order and filed, that the party seeking such relief should admit service, or submit to service upon her, of a judgment entered in the action. (Thousand Island Park Assn. v. Gridley, 25 App. Div. 499 [1898].) Resettlement of an order which does not contain proper recitals.] If an order does not contain the proper recitals, the proper practice is to move for its resettlement. (Mooney v. Ryerson, 8 Civ. Pro. Reports, 435 [N. Y. City Court Sp. T. [1885].) Eule 4] General Eules of Peactice. 53 Resettlement, not allowed to effect a removal of a motion.] A party whose motion to resettle an order, by reciting therein certain papers used upon the motion has been denied, has no right to make motions, ostensibly to resettle orders, but which have for their object the same relief which was refused by the original order denying his motion for resettlement, as such procedure amounts, in effect, to renewals of the original motion without leave. (Deutermann v. Pollock, 36 App. Div. 522 [1899].) Power of justices of the Appellate Division as to granting orders.] No justice of the Appellate Division shall exercise any of the powers of a justice of the Supreme Court, other than those of a justice out of court, and those pertaining to the Appellate Division or to the hearing and decision of motions submitted by consent of counsel. (Const, of 1894, art. 6, § 2.) Court cannot direct that certain papers used upon a motion need not be printed in the appeal papers.] There is no provision of the Code or Rules which authorizes the Special Term to direct that papers submitted upon a motion heard at Special Term, and which have been duly filed and are recited in the order entered upon such motion, need not be printed in the papers to be used on the argument of an appeal from such order; the power to make such direction can be exercised only upon the theory that some of the papers which have been so submitted, filed and recited were not actually used, or that they were not considered by the court in deciding the motion. (Manhattan Railway Co. V. Taber, 7 Misc. Rep. 347 [Supm. a. 1894].) Motion defined.] (See Matter of Jetter, 78 N. Y. 601.) Nonemimerated motions — what are.] (See Rule 38.) Nonenumerated motions — for what day noticed.] (Rule 21.) See notes to Rules 2 and 4. Motion — where made.] The practice of moving before one judge at Special Term to declare void the order or judgment of another judge at Special Term is not sanctioned by any provision of the Code of Civil Procedure, or by any other controlling authority. (Piatt v. N. Y. & Sea Beach Ry. Co., 170 N. Y. 451 [1902]. See, also, Code Civ. Pro., §§ 772, 774, et seq.) On an appeal from an order of a County Court it was objected that the order, which was without a caption, was a judge's order and not a court order, it was held that the application having been made to County Court and the order reciting that fact, the order should be regarded as a court order. (Law- son V. Spear, 91 App. Div. 411.) See Terry v. Green, 53 Misc. 10. RULE 4. Filing Undertaking and AfSdavit — Injunction — Attachment. Except where otherwise expressly provided by law, it shall be the duty of the attorney of the party required to give a bond or undertaking to forthwith file the same with the proper clerk ; and in case such bonds and undertakings shall not be so filed, any party to the action or special proceeding, or other persons interested, 64 CouETS OF Eecokd. [Rule 4 shall be at liberty to move the court to vacate the proceedings or order as if no bond or undertaking had been given. It shall also be the duty of the attorney to file the petition or affidavit upon vphich an injunction, attachment, order of arrest, or writ, has been granted within ten days after the same shall have been served. In case of a failure so to file such petition or affidavit, the oppos- ing party may move to vacate the order, warrant or writ, and the same shall be vacated by the court or judge granting the same, un- less for proper cause shown time to file the same shall be extended. Rule 4 of 1858, amended. Rule 4 of 1871. Rule 5 of 1874, amended. Rule 4 of 1877, amended. Rule 4 of 1880. Rule 4 of 1884. Rule 4 of 1888, amended. Rule 4 of 1896. CODE OF CIVIL PROCEDURE. §§ 562, 590. Arrest- — papers on which the order was granted, to be filed. § 576. Ball — examination of persons offered as. § 602. Order substituted for writ of injunction. § 603. Injunction, where right thereto depends on the nature of the action. § 604. Injunction — dependent on extrinsic facts — affidavits on application for, what to state. § 605. Injunction restraining a State officer only granted at a term of the Supreme Court sitting in the department in which the officer is located. § 606. Injunction — by whom granted, except where specially prescribed by law. § 607. Proof sufficient to justify the granting of an injunction. § 626. Order vacating an injunction — when it takes effect. § 636. Attachment — affidavit on an application for, what to state. § 639. Affidavit to be filed with clerk within ten days after the granting of the warrant. § 642. Validity of undertaking not affected by improper granting of war- rant, want of jurisdiction, or other cause. § 815. Bonds and undertakings not affected by change of parties. ■§ 816. Bond or undertaking given in an action or special proceeding must be filed with the clerk, except as otherwise provided for. § 1307. Undertaking given on appeal, must be filed. § 1536. Bond of guardian ad litem for infant party in partition must be filed. § 3272. Undertaking to be filed, where security for costs is required. § 3421. Undertaking on an application to foreclose a lien on a vessel must be filed. See notes under Rules 3 and 5. ATTACHMENT — Not vacated because of failure to file the affidavit.] The failure to file an affidavit, on which an attachment was issued within ten Eule 4] General Rules of Peacticb. 55 days, is not ground for vacating the attachment. (Brash v. Wielarksy, 36 How. Pr. 253 [Sp. T. 1868]; Woodward v. Stearns, 10 Abb. Pr. [N. S.] 395 [Sp. T. 1871].) Affidavits on — filed under section 639 of the Code.] The time for filing the affidavits on an attachment is provided for by section 639 of the Code of Civil Procedure. AfSdavit — what to contain.] The affidavit must set out the evidence upon which the plaintiff relies. (Delafield v. Armsby Co., 62 App. Div. 262; Murphy v. Jack, 142 N. Y. 215.) Where an attachment is sought in an action to recover unliquidated dam- ages, affidavits must contain prima facie proof that damages to the amount claimed have been sustained. (Chazy Marble Lime Co. v. Derby, 88 App. Div. 150.) Affidavit — cannot be attacked collaterally.] A warrant of attachment, issued upon affidavits sufficient to give the justice jurisdiction, cannot be questioned collaterally. (Rogers v. IngersoU, 103 App. Div. 490.) INJUNCTION — Failure to file papers — relief granted.] Where a party, by inadvertence, fails to file the papers upon which an injunction is granted, the court may relieve him upon or without terms. (Iieffingwell v. Chave, 5 Eosw. 703 [Sp. T. Supr. Ct. 1860] ; 19 How. Pr. 54; 10 Abb. 472. See Johnson V. Casey, 3 Robt. 710; S. C, 28 How. Pr. 492 [Sp. T. 1865]; O'Donnell v. McMurn, 3 Abb. Pr. 391 [Sp. T. 1856].) UNDERTAKING — Rejection of sureties on — a new undertaking must be filed and justification take place, in what time.] Under an order, on rejection of proposed sureties, granting appellant ten days' time to file an undertaking with new sureties, the new undertaking must not only be filed, but justifi- cation of the sureties must be had, within the time. (Chamberlain v. Demp- sey, 13 Abb. Pr. 421 [Supr. Ct. Sp. T. 1862]; S. C, 22 How. Pr. 356.) Vacating order of arrest because of insufficient undertaking.] A motion to vacate an order of arrest because of the insufficiency of the under- taking, cannot be denied, where such insufficiency exists, upon the condition of a sufficient undertaking being filed. (Bondy v. Collier, 13 Misc. Rep. 15 [1895].) Not void, as taken colore officii.] When an undertaking given upon procuring an injunction is not invalid as having been taken colore officii, because of its terms being unusual. (Candee v. Wilcox, 26 Hun, 666 [1882].) Undertaking to stay proceedings on appeal, when to be filed.] An undertaking to stay proceedings on appeal must be filed and served with the notice of appeal, and not afterwards. (New York Central Inc. Co. v. Safford, 10 How. Pr. 334 [Sp. T. 1854].) Filing — necessary.] An imdertaking on appeal is not effectual until filed. (Webster v. Stevens, 5 Duer, 682 [Supr. Ct. Sp. T. 1856] ; S. C, 3 Abb. Pr. 227.) ——Rights, etc., of sureties.] Rights and liabilities of sureties upon an undertaking given upon the issuing of an attachment. (Baere v. Armstrong, 26 Hun, 19 [1881].) — Cancelling of an undertaking on file.] The propriety of cancelling an 56 Courts of Eecoed. [Rule 5 undertaking on file is doubtful. Where there are other persons in interest besides those who consent to the order, it should not be done. (Dry Dock, East Broadway, etc., R. R. Co. v. Cunningham, 45 How. Pr. 458 [Gen. T. 1873]. See, also, Cunningham v. White, 45 How. Pr. 486 [Sp. T. 1873].) Enforcement.] An undertaking on appeal from an order which re- quired the restoration of a fund by deposit in a certain bank, can be enforced only by requiring such deposit and not by payment of the sum to the party for whose beneiit the undertaking was given, where rights of other parties in the action are involved. (Mossein v. Empire State Surety Co., 117 App. Div. 820.) Liability of surety.] Surety on an undertaking on arrest, held liable for but one cause of action. (McLean v. Fidelity & Deposit Co., 56 Misc. 23.) It is a defense to an action on an undertaking to stay execution, that the sureties were excepted to and failed to justify and that the bond was not approved. (Montrose v. Levinson, 114 N. Y. Supp. 136.) Validity of undertaking must be determined by an action brought thereoo. (Riddle v. MacFadden, 60 Misc. 569.) Right of sureties to be discharged.] Presentation by a surety of a petition to the court asking to be discharged and the action to be taken therein, provided for. (Code Civ. Pro., § 812.) As to amendments of undertakings, justification, etc., see notes under Rule 5. RULE 5. Sureties, Justification of — Bonds to be Proved or Acknowledged — Attorney or Counselor Cannot be Sureties. , Whenever a justice or other officer approves of the security to be given in any case, or reports upon its sufficiency, it shall be his duty to require personal sureties to justify, or, if the security oifered is by way of mortagage on real estate, to require proof of the value of such real estate. And all bonds and undertakings, and other securities in vyriting, shall be duly proved or acknowl- edged in like manner as deeds of real estate, before the same shall be received or filed. In no case shall an attorney or counselor be surety on any under- taking or bond required by law, or by these rules, or by any order of a court or judge, in any action or proceeding, or be bail in any civil or criminal case, or proceeding. Rule 5 of 1858, amended. Rule 6 of 1858. Rule 8 of 1871, amended. Rule 9 of 1871. Rule 8 of 1874, amended. Rule 9 of 1874, amended. Rule 5 of 1877. Rule 5 of 1880. Rule 5 of 1884. Rule 5 of 1888. Rule 5 of 1896. Rule 5] Genekal Rules of Pbactice. 57 CODE OF CIVIL PROCEDURE. §t 573-590. As to bail and their justification. § 810. Bonds and undertakings must be acknowledged or proved, and cer- tified as a deed to be recorded. § 811. Party need not join with sureties — when one surety is sufiicient. § 812. Form of bond or undertaking — affidavit of sureties — in what case may be omitted ■ — approved by court or judge. § 813. When several sureties may justify, each in a smaller sum than the bond or undertalcing. § 814. Suitor may sue on bond, etc., taken for his benefit to the people or a public officer. § 815. Bonds and undertakings not affected by change of parties. § 816. To be filed with clerk, except when a different disposition thereof is directed. § 827. Special reference may be ordered for the approval of a bond or undertaking. § 1305. Security on appeal, may be waived by written consent of respondent. § 1307. Undertaking on appeal, must be filed with the clerk. § 1308. New undertaking on appeal, to be given when sureties are insolvent. § 1309. Action upon undertaking on appeal — at what time maintainable. § 1335. Exception to, and justification of sureties on an appeal to the Court of Appeals. AMENDMENTS TO UNDERTAKING — Undertaking given on procuring an arrest.] The court has power to allow an amendment of an undertaking given on procuring an order of arrest. (Irwin v. Judd, 20 Hun, 562 [1880].) ^—Allowed even upon appeal.] To cure any mere formal defect in the approval thereof. (Ten Eick v. Simpson, 11 Paige, 177 [1844].) As to the amount— (Eldridge v. Howell, 4 Paige, 457 [1834].) Where it has not been proved or acknowledged.] (Conklin v. Dutcher, 5 How. 386, 388 [Gen. T. 1850] ; Harrington v. The Am. Life Ins. & Trust Co., 1 Barb. 244 [Sp. T. 1847]; Bellinger v. Gardiner, 12 How. Pr. 381 [Sp T. 1856] ; S. C, 2 Abb. 441 ; Beach v. Southworth, 6 Barb. 173 [Gen. T. 1849] ; S. C, 1 Code R. 99.) By adding the names of other sureties, where by mistake or inadver- tence the requisite number have not joined in the undertaking.] (Potter v. Baker, 4 Paige, 290 [1834]. See Kissam v. Marshall, 10 Abb. 424 [Sp. T. 1860] and cases cited.) Where it has not been acknowledged before a proper officer.] Rida- bock V. Levy, 8 Paige, 197 [1840].) When given on procuring an arrest.] (Irwin v. Judd, 20 Him, 562 [1880].) Use of a seal on an undertaking implies a consideration.] (Grim v. Little, 43 Misc. 421.) JUSTIFICATION — Affidavit of.] The affidavit of justification should be annexed to and filed with the undertaking. (Van Wezel v. Van Wezel, 3 Paige, 38 [1831].) 58 Courts of Record. [Rule 5 In what amount on appeal to the Appellate Division of the Supreme Court.] Sureties on an appeal to the Appellate Division of the Supreme Court must justify in double the amount of the judgment and costs. (Heppock v. Cottrell, 13 How. Pr. 461 [Sp. T. 1857].) Must be double the sum specified in the undertaking.] An undertaking given in proceedings of claim and delivery, on which there were four sureties, and only three justified, and the aggregate amount of their justification was less than double the sum specified in the imdertaking, held insufficient. (Graham v. Wells, 18 How. Pr. 376 [Sup. Ct. Chamb. 1857].) That sureties justify to more than is necessary is not objectionable ] It is no objection to an undertaking on appeal that the sureties justify in more than twice the amoimt specified therein. (Hill v. Burke, 62 N. Y. Ill [1875].) Failure to justify in double the judgment and the $500 does not invali- date the undertaking.] That the sureties to an undertaking fail to justify in double the amount of the judgment, and to double the $500 limited for costs and damages, does not invalidate the undertaking. (Hill v. Burke, 62 N. Y. Ill [1875]; Rich v. Beekman, 2 Code R. 63 [1849].) Partial justification — may sustain appeal, when.] An undertaking on appeal, in form sufficient to eilect a stay of proceedings, but in which the jus- tification was not in a sum sufficient for that purpose, held sufficient to sus- tain the appeal. (Newton v. Harris, 8 Barb. 306 [Sp. T. 1850].) Effect of the failure of the sureties excepted to, to justify.] The effect of the failure of sureties to justify after they are excepted to, is the same as if the undertaking had not been given by them. (Manning v. Gould, 90 N. Y. 476 [1882].) Sureties not released by their failure to justify.] The sureties on an undertaking on appeal are not released from liability by their failure to jus- tify after being excepted to. (McSpedon v. Bouton, 5 Daly, 30 [Gen. T. 1873].) Sureties not discharged because further sureties are required.] Sureties are not discharged because of the parties being directed to furnish further sureties. (Jewett v. Crane, 13 Abb. Pr. 97 [Gen. T. 1861].) When a substitute not required for an insolvent surety.] Where one surety becomes insolvent, if the other surety is abundantly able to satisfy the judgment, or if the judgment is otherwise well secured and the appeal is likely to be soon disposed of, the appellate court may refuse to require the appellant to file a new undertaking. (Dering v. Metcalfe, 72 N. Y. 613 [1878].) Default by plaintiff, after requiring justification.] Where, after a notice of qualification was duly served the plaintiff failed to appear and the bill was approved by default, the court has no power to open such default. (Lewis V. Stevens, 93 N. Y. 57 [1883].) — Agreement to accept surety — without justification — effect of.] It was agreed by the attorneys that a surety on an undertaking on appeal should be accepted without justification on his part, defendant's attorney promising to have it so marked upon the undertaking by the court; which, however, was never done, although the appeal was taken as though it had been. Kule 5] Geneeal Rules of Practice. 59 In an action brought upon the undertaking against the sureties thereto, they claimed that it could not be maintained, for the reason that the approval of the sureties had never been indorsed on the undertaking as required by section 196 of the Code of Procedure. Held, that the consent to accept the surety was a waiver of the justification, and no indorsement was necessary. (Gopsill V. Decker, 4 Hun, 625 [Gen. T. 1875].) As to bail and their justification, see Code of Civil Procedure, sections 573 to 590, and Sheriff, post. Time within which a justification must take place where a new under- taking is filed.] (See Chamberlain v. Dempsey, 13 Abb. Pr. 431 [Supr. Ct. Sp. T. 1862] ; S. C, 22 How. Pr. 356.) INDORSEMENT — Effect of failure to have.] When the undertaking filed on granting an order of arrest, is not indorsed with the approval of the justice granting the order, the order will, on motion, be vacated with costs. (Newell V. Doran, 21 How. Pr. 427 [Sp. T. 1861].) Copy of indorsed paper should contain the indorsement. (Dent v. Watkins, 49 How. Pr. 275 [Chamb. 1875].) See, however. Forward v. French, 52 How. Pr. 88 (Sp. T. 1876). See notes under " Indorsement " under Rule 2. ATTORNEYS — Cannot become bail.] Miles v. Clarke, 4 Bosw. 632, affirm- ing 2 id. 709; Craig v. Scott, 1 Wend. 35; King v. Sheriff of Surrey, 2 East, 181; Laing v. Cundall, 1 H. Bl. 76, note a; Wheeler v. Wilcox, 7 Abb. 73; Coster V. Watson, 15 Johns. 535.) Attorneys — who may be sureties on undertakings.] The rule that an attorney and counselor shall not be surety on any undertaking or bond, does not apply to a person whose name still appears on the roll of attorneys, but who has abandoned the practice of the law to engage in another occupation. (3 How. Pr. [N. S.] 214 [Sp. T. Sup. Ct. 1886]; Stringham v. Stewart, 8 N. Y. Civ. Pro. Rep. 420 [Sup. Ct. Sp. T. 1886.] Liability of, on an undertaking.] ^Vhere an attorney, without objec- tion, becomes surety on an undertaking, he incurs no other or different responsibility than attaches to tlie obligation he signs, and the same can be enforced in no other or diflierent manner than if it were the obligation of a person not an attorney or officer of the court. (Wilmont v. Meserole, 48 How. Pr. 430 [Sp. T. 1875]; S. C, 16 Abb. [N. S.] 309.) SHERIFF — Cannot become bail.] (Bailey v. Warden, 20 Johns. 129; Banter v. Levy, 1 Chitt. 713; Bolland v. Pritchard, 2 W. Bl. 799; Doldern v. Feast, 2 Grange, 889, and note 1.) Discharged by qualification of bail.] Where a sheriff has been dis- charged from liability under an order of arrest by the qualification and allowance of bail, the court has no power to renew his liability. (Lewis v. Stevens, 93 N. Y. 57 [1883].) CITY COURT (of New York) — Attachment — justification.] On an under- taking given to discharge an attachment, issued from the New York City Marine Court, the sureties may justify before a county judge of the county in which they reside. (Seed v. Teale, 2 N. Y. Weekly Digest, 545 [Marine Court, 1876].) CO CouKTS OF Eecoed, [Rulc & RULE 6. How Sheriff's Return Compelled. At any time after the day when it is the duty of the sheriff, or other officer, to return, deliver, or file any process, or other paper, by the provisions of the Code of Civil Procedure, or by these rules of the courts, any party entitled to have such act done, except where otherwise provided by law, may serve on the officer a notice to return, deliver, or file such process, or other paper, as the case may be, within ten days, or show cause, at a Special Term to be designated in said notice, why an attachment should not issue against him. Rule 8 of 1858. Rule 10 of 1871, amended. Rule 10 of 1874, amended. Rule 6 of 1877. Rule 6 of 1880, amended. Rule 6 of 1884. Rule 6 of 1888. Rule 6 of 1886. CODE OF CIVIL PROCEDURE, § 14. Neglect to return — punishment for. See Judiciary Law, § 753. f 23. Writ or other process must be returned to the clerk, unless other- wise prescribed. § 102. Sheriff may make return by mail. § 103. Liability and punishment of sheriff for neglect to execute mandate in special proceedings. § 186. Former sheriff, after election of his successor, must execute mandate in his hands. See County Law, § 195. § 339. Execution and return of process issued from City Court of New York. § 577. Arrest and bail — duty of sheriff if bail is given. § 590. Arrest and bail — filing of papers if bail is not given. § 712. Return of sheriff where a warrant of attachment is annulled, etc § 725. The return may be ordered amended by the court. § 825. In special proceedings; return, where to be filed. § 1715. Return of sheriff, in replevin — when to be made. § 1716. How return compelled. § 1818 et seg. Suit on sheriff's bond. § 2270. Notice to delinquent officer to show cause. RECEIPT — For process.] The sheriff must give receipt for process de- livered to him if required. (Code of Civil Procedure, § 100.) DELIVERY TO DEPUTY — Liability of sheriff.] If the sheriff acts on an execution which was delivered to his deputy, he is liable for not returning it. (People v. Waters, 1 Johns. Gas. 137 [Sup. Ct. 1799] ; S. C, Col. & C. Cas. 82.) — ^ Delivery of process must be known to him.] The sheriff is not in con- tempt for not acting on process which never came to hid personal knowledge, and Eule 6] General Eules of Peactice. 61 was not lodged at his office. (People v. Waters, 1 Johns. Cas. 137 [Sup. Ct. 1799]; S. C, Col. & C. Cas. 82.) Delivery to a person in charge of the business in the office of the coroner — when sufficient.] (Manning v. Keenan, 9 Hun, 686 [Gen. T. 1877].) RETURN — Process may be returned on the morning of the return day.] An officer may return process on the morning of the day of its return, and is not responsible, though he might, subsequent to the return, have executed the process. (Hinman v. Borden, 10 Wend. 367 [1833].) Sheriff to serve and return a declaration within a reasonable time.] A declaration delivered to a sheriff to be served must be served and returned within a reasonable time. (Anon., 10 Wend. 572 [1833].) An officer is bound to use diligence in executing process.] An officer having process requiring the arrest of a party is bound to use all reasonable endeavors to execute it. (Hinman v. Borden, 10 Wend. 367 [1833].) -^Sheriff is bound to levy under an execution regular on its face.] It is the duty of a sheriff to levy under an execution regular upon its face; and it is no excuse for his omission that it varies from the amount for which the judgment was rendered. (Parmelee v. Hitchcock, 12 Wend. 96 [1834].) Sheriff not liable, if the execution was void.] If the execution be void the sheriff is not liable for an escape of a debtor. (Ginochio v. Orser, 1 Abb. Pr. 433 [N. Y. Com. PI. Sp. T. 1855].) Sheriff not excused for an escape by showing that the execution was irregular.] The sheriff cannot protect himself in an action for an escape by sliowing irregularity in an execution against the person upon which the arrest was made. (Ginochio v. Orser, 1 Abb. Pr. 433 [N. Y. Com. PI. Sp. T. 1855].) Irregularity in issue of writ — sheriff cannot take advantage of.] AVhen a sheriff cannot avail himself of the irregularity of the issuing of the writ. (Hinman v. Brees, 13 Johns. 529 [1816].) Sheriff to return writ without an order of the court.] It is the duty of a sheriff to return a writ without an order of the court for that purpose. (Hinman v. Brees, 13 Johns. 529 [1816].) Effect on a return of a reversal of the order requiring it to be made.] Where a return is made by a sheriff in pursuance of an order from which an. appeal has been taken, the return should be canceled in case the order be reversed on the appeal. (Benedict, etc., Manuf'g Co. v. Thayer, 21 Hun, 614 [1880].) Demand for return not necessary before suit.] If the sheriff does not return the fi. fa. by the sixtieth day after he receives, it, he is liable to an action without being first called upon to make the return by rule or notice. (Corning v. Southland, 3 Hill, 552 [Sup. Ct. 1842].) Attachment to compel — an action may be brought.] A sheriff is bound to return an execution according to the requisition of the statute; if he fails to do so he is liable to an attachment or an action at the election of the party aggrieved. (AVilson v. Wright, 9 How. Pr. 459 [Sp. T. 1854].) Damages for a failure to make — proof of.] The plaintiff in an action against a sheriff for a failure to return an execution is only entitled to recover the damages sustained by the neglect of the sheriff; and where in such a case 63 CouETS OF Recokd. [Eule 6 it appears only that there was a small amount of property of the judgment debtor upon which a levy could have been made, it is error for the court to direct a verdict for the full amount of the execution, unless it appear beyond dispute that the full amount thereof could have been realized therefrom. (Dol- son V. Saxton, 11 Hun, 565 [Gen. T. 1877].) ^Return by thie deputy, as to the amount collected on an execution, con- clusive on the sheriff.] In an action by the plain tiflf in an execution against a sheriff for the moneys collected upon it, the return is conclusive evidence in favor of the plaintiiT of the amount, and, although made by a deputy of the sheriff, it cannot be impeached by him. (Sheldon v. Payne, 7 N. Y. 453 [1852].) Return of an execution after action commenced — damages — effect of return nulla bona.] After the commencement of an action brought against the sheriff for a failure to return an execution within sixty days, he returned the same indorsed nulla bona. Upon the trial the plaintiff proved the issuing of the execution, and its return and indorsement after the commencement of the action. Held, that, as the return was made by a public officer of an official act he was bound by law to do, it was evidence in favor of the officer making it; that, as the plaintiff did not contradict the return, he was en- titled to recover only nominal damages. (Bechstein v. Sammis, 10 Hun, 585 [Gen. T. 1877].) Effect of return of "not found" on the bail — their rights if the return is false.] The return by a sheriff to an execution against the person of " not found " subjects the bail of the defendant to an action upon his undertaking, and is conclusive upon him. If the return is false, the bail has a right of action against the sheriff for the damage sustained by reason thereof. (Cozine V. Walter, 55 N. Y. 304 [1873].) Return of " discharged on bail" — when made by new sheriff.] The old sheriff has no right to return a writ of capias ad respondendum after he is out of ofKce, but should deliver it to the new sheriff with the assignment of the prisoner so that the new sheriff may return it with his indorsement of the dis- charge of the defendant on bail, by which the plaintiff will know the situation of the defendant. The new sheriff is not bound to give notice to the plaintiff" of his having let the defendant to bail. (Richards v. Porter, 7 Johns. 137 [1810]. See, however, Code of Civil Pro., § 186.) Sheriff, after expiration of his term, may complete execution of a fi. fa.] After a sheriff' has gone out of office, he may complete the execution of a fi. fa. (Wood V. Colvin, 5 Hill, 228 [1843].) CORRECTION OF RETURN — A return may be corrected, after an action for a false return has been commenced.] The return of a sheriff may be amended by leave of coiu-t, on proper terms and on due notice, after the com- mencement of an action for an insufficient and false return. (People v. Ames, 35 N. Y. 482 [1866].) A corrected return may be read in evidence with the same efiect as if originally so made.] Such a return may be read in evidence with the same effect as if originally made in the amended form. (People v. Ames, 35 N. Y. 482 [1866].) Omission of the sheriff to indorse the proper return on an execution — Eule 6] General Eules of Pkactice. 63 amendable nunc pro tunc] The omission of the sheriff to indorse upon an execution the proper return before it is filed, is amendable nunc pro tuun after the filing; but he must pay the cos,ts of the motion. (Hall v. Ayer, 19 How. Pr. 92 [Sp. T. 1859].) EXCUSE FOR NOT RETURNING — Permission.] What will amount to permission to the sheriff from plaintiff's attorney to retain an execution in his hands, beyond the return day. (Humphrey v. Haythorn, Sheriff, 24 Barb. 278 [Gen. T. 1857]. See McKinley v. Tucker, 59 Barb. 93 [Gen. T. 1870].) Waiver of right of action for nonreturn.] If the plaintiff in an execu- tion treats it as properly in the officer's hands, after the return day, he waives his existing right of action for its nonreturn. (McKinley v. Tucker, 6 Lans. 214 [Gen. T. 1872].) Plaintiff in execution, when not liable for instruction to sheriff.] The plaintiff in an execution is not answerable for having made a deputy sheriff, charged with its service, his agent by giving him instructions to sell goods levied upon, upon credit, if the deputy does nothing in conformity with the instructions, (Sheldon v. Payne, 7 N. Y. 453 [1852].) Fees — nonpayment of.] A sheriff is entitled to prepayment of his fees for the service of a summons and complaint, but if he serves them without prepayment, he cannot retain them, and refuse to make a return because his fees are not paid. (Wait v. Schoonmaker, 15 How. Pr. 460 [Sp. T. 1858].) Stay of proceedings.] An order staying proceedings on an execution in the hands of the sheriff, exonerates him during its continuance, from the duty of returning the execution. If the plaintiff desires to bring the sheriff into con- tempt, he must furnish him with proof that the stay is no longer in force. (The People v. Carnley, 3 Abb. 215 [Sp. T. 1856].) Submission to arbitration after judgment — sheriff cannot set it up as an excuse for not returning an esecution.] Where a judgment was recovered in an action for slander, from which judgment the defendant appealed to the General Term, and afterwards the parties, by an agreement in writing and mutual bonds of submission setting forth the pendency of the action, the trial thereof and the appeal, submitted the action to the decision of certain persons named as arbitrators, held, that all the legal proceedings were discon- tinued and ended by the submission and the judgment could no longer be pro- ceeded upon. The defendant having revoked the submission, and a motion being made for an attachment against the sheriff for not returning an exeoution on the judgment pursuant to a notice served on him, held, that the sheriff could not avail himself of the submission as an answer to the motion ; that the execu- tion was not void, but only voidable, and that the right to avoid it was personal to the defendant, whose remedy was by motion to set aside the execution, or for a perpetual stay of proceedings. (Grosvenor v. Hunt, 11 How. Pr. 355 [Sp. T. 1854].) PRESUMPTION — That the sheriff began its exiecution within the lifetime of the writ.] In the execution of a writ of possession after the return day, it will be presumed that the sheriff began the exeoution of the process within the lifetime of the writ. (Witbeck v. Van Pvensselaer, 2 Hun, 55 [G«n. T. 1874].) 64 OoTJKTs OF Recoed. [Eule 7, KULE 7. Books to be Kept by Clerk of Courts. The clerk of the Appellate Division in each department shall keep: 1. A book, properly indexed, in which shall be entered the title of all actions and proceedings which are pending in that court, and all actions or special proceedings commenced in the Appellate Division, with entries under each, showing the proceedings taken therein and the final disposition thereof. 2. A minute book, showing the proceedings of the coujt from day to day. 3. A remittitur book, containing the final order made upon the decision of each case, a certified copy of which shall be transmitted to the proper clerk, as required by the Code of Civil Procedure. 4. A book, properly indexed, in which shall be recorded at large each bond or undertaking filed in his office, with a statement of the action or special proceedings in which it is given, and a statement of any disposition or order made of or concerning it. 5. A book, properly indexed, which shall contain the name of each attorney admitted to practice, with the date of his admission, and a book, properly indexed, which shall contain the name of each person who has been refused admission or who has been dis- barred or otherwise disciplined or censured by the court. The clerk of each department shall transmit to the clerk of the Court of Appeals and to the clerks of the other departments the names of all attorneys who have been admitted to practice, the names of all applicants who have been refused admission, and the names of all attorneys who have been disbarred, disciplined or censured by the court. The clerk of each department is directed to enter in the proper book the name of each attorney who has been admitted to practice, with date of his admission, and the name of each per- son who has been refused admission or has been disciplined, with the date of such refusal of admission or discipline, received from the other departments of the State, together with the date when and department wherein the order was made. The clerks of the other courts shall keep in their respective offices, in addition to the " judgment book " required to be kept by the Code of Civil Procedure : Hule 8] General Rules of Peactice. 65 1. A book, properly indexed, in which shall be entered the title of all civil actions and special proceedings, with proper entries under each denoting the papers filed, the orders made and the steps taken therein, with the dates of the several proceedings. 2. A book in which shall be entered at large each bond and un- dertaldng filed in his office, with a statement showing when filed and a statement of any disposition or order made of or con- cerning it. 3. Such other books, properly indexed, as may be necessary to enter the minutes of the court, docket judgments, enter orders and all other necessary matters and proceedings, and such other books as the Appellate Division in each department shall direct. Rule 9 of 1S58, amended. Rule 11 of 1871, amended. Rule 11 of 1874, amended. Rule 7 of 1877. Rule 7 of 1880. Rule 7 of 1884. Rule 7 of 18S8, amended. Rule 7 of 1396. Rule 7 as amended, 1910. CODE OF CIVIL PROCEDtTEE. § 816. Bond or undertaking to be filed with clerk, except when a different disposition thereof is directed. § 933. Certified copies of records in office of the clerk of the court made presumptive evidence. § 1230. Clerk to keep judgment' book and enter judgments therein. § 1245. Certain clerks to keep docket-book. I 1672. Lis pendens to be recorded and indexed. See notes under Rule 8. EITLE 8. Judgments, When to be Entered and Docketed. Judgments shall only be entered, or docketed, in the offices of the clerks of the courts of this State, within the hours during which, by law, they are required to keep open their respective offices for the transaction of business, and at no other time. Rule 9 of 1858, amended. Rule 12 of 1871. Rule 12 of 1874. Rule 8 of 1877. Rule 8 of 1880. Rule 8 of 1884. Rule 8 of 1888. Rule 8 of 1896. CODE OF CIVIL PROCEDURE. § 1236. Duty of clerk as to making up judgment rolls and recording judg- ments. % 1237. Judgment roll to be filed — of what to consist. § 1238. It must be prepared and furnished to the clerk by the attorney. % 1239. Clerk must make a minute of the filing on the back of the judgment roll. 5 66 OouETS OF Recoed. [Rule 8 § 1251. Real property bound for ten years by a docketed judgment. i 1255. Time not included in the ten years. § 1256. Lien suspended on appeal. § 1319 et seq. Enforcing affirmed or modified judgment. § 1321. Canceling docket of reversed or modified judgment. § 1322. Correction of docket of judgment reversed in part by the Court of Appeals. § 1323. Restitution — when awarded. § 1380. Continuance of lien for three years and six months in case of death. BUSINESS HOURS — Of county clerks.] Clerks of counties, courts of record and registers of deeds, except in the counties, of New York and Kings, as hereinafter provided, shall respectively keep open their offices for the trans- action of business every day in the year, except Sundays and other days and half days declared by law to be holidays or half holidays, between the thirty- first day of March and the first day of October next following, from eight o'clock in the forenoon to five o'clock in the afternoon, and between the thir- tieth day of September and the first day of April next following, from nine o'clock in the forenoon to five o'clock in the afternoon. In the counties of New York and Kings said offices, the sheriff's office and the offices of the com- missioner of jurors, siiall remain open during the months of July and August in each year from- nine o'cloclc in the forenoon to two o'clock in the afternoon, and during the other months in the year from nine o'clock in the forenoon to four o'clock in the afternoon. (Chap. 961 of Laws of 1895. Amended by ch. 534 of Laws of 1903.) JUDGMENT — Authority to enter judgment.] Authority to render a judg- ment exists only where there is an existing action, and where an order deter- mines that no action is pending, because process has not been served, and sets aside a notice of lien and lis pendens, there is no authority for entering a judg- ment for defendant for coats. (Booth v. Kingsland Ave. Bldg. Assn., 18 App. Mv. 407 [1897].) Signing and recording judgments — judgment book.] Every interlocutory judgment or final judgment shall be signed by the clerk and filed in his office, and such signing and filing shall constitute the entry of the judgment. The clerk shall, in addition to the docket books required to be kept by law, keep a book, styled the " judgment book," in which he shall record all judgments entered in his office. (Code Civil Procedure, § 1236.) Omission of the clerk to sign a judgment.] The omission of the clerk to sign the judgment roll on entering up a judgment does not affect the validity of the judgment. It is a clerical error and a mere question of practice and of regularity, which the Supreme Court can and will at any time allow to be amended nunc pro tunc. (Van Alstyne v. Cook, 2o N. Y. 490 [1862]; Goelet V. Spofford, 55 N. Y. 647 [1873]; Bank v. Treadwell, 34 Barb. 553 [Gen. T. 1861]. See, however, as to service of a copy without the attestation of the clerk being effective to limit the time to appeal. Good v. Daland, 119 N. Y. 153 [1890].) Judgment can only be entered according to the decision rendered.] The clerk can only enter judgment in accordance with the decision rendered. Eule 8] General Eules of Pkactice. 67 and where the words of the referee are that the complaint " be disjnissed, with- out costs," the clerk cannot add the words " upon the merits." (Petrie v. Trus- tees of Hamilton College, 92 Hun, 81 [1895].) How far it is necessary to enroU a decree.] The final decree of a court of equity takes effect when it is made and declared by the court; and the record, when made up, is only evidence of the decree, and simply proves it, without adding anything to its validity. It is not necessary, even to enroll it, except in those cases where it is required to be enrolled aa preliminary to some further action, which the statute authorizes to be taken upon it only after enrollment. (Butler v. Lee, 33 How. Pr. 252 [Ct. of App. 1866].) What constitutes. A paper filed, stating the trial, verdict and costs taxed and ordering that judgment be entered in favor of the plaintiff and against the defendant, is not a judgment, but simply an order for judgment, and when docketed as a judgment will be set aside. (Marsh v. Johnston, 123 App. Div. 596.) An order modifying a judgment and expressly stated to be supplementary to the judgment and in execution thereof, is itself a judgment, and is appealable. (Saal v. South Brooklyn Ry. Co., 122 App. Div. 364.) What is not a judgment.] The finding of a referee in proceedings by the committee of the person and estate of an habitual drunkard for leave to sell his real estate for the payment of his debts, that a claim presented is a valid and subsisting debt against the drunkard for an amount stated, is not a judg- ment within the meaning of section 376 of the Code of Civil Procedure. (Sheldon v. Mirick, 144 N. Y. 498 [1895].) The entry made by the clerk on receiving a verdict is not the judgment.] The entry, made by the clerk by the direction of the court on receiving a verdict, of the judgment to be rendered thereon is not the judgment. (Lentilhon V. Mayor, 3 Sandf. 721 [Gen. T. 1851].) The record constitutes the judgment in common-law actions.] In com- mon-law actions no judgment is pronounced, except by the record which is made up in the clerk's office. (Butler v. Lee, 33 How. Pr. 252 [Ct. of App. 1866].) Judgment book and docket distinguished.] The judgment book re- quired by section 1236 of the Code of Civil Procedure is a distinct and sepa- rate book from the judgment docket or docket book. (Sheridan v. Linden, 81 N. Y. 182 [1880].) ——Entry of judgment on a verdict.] It is the duty of the clerk to enter judgment in conformity with the verdict, unless the court otherwise direct. (Morrison v. N. Y. & New Haven R. R. Co., 32 Barb. 568 [Sup. Ct. I860].) Duty of clerk as to its entry in the judgment book.] The clerk must enter in the judgment book " the judgment " in cases where the decision of the court is given in writing and filed and must insert a copy of such judgment in the judgment-roll in making it up, and sign the same. (Plankroad Co. v. Thatcher, 6 How. Pr. 226 [Sp. T. 1851].) Judgment not perfected until entered in the judgment book.] A judg- ment upon a verdict is not perfected, under the Code, until entered in the judgment book with the amount of coats (if any) recoverable, inserted therein. 68 CouETS OF Rbcoed. [Eule 8 Until so entered, it is not a judgment from which an appeal can be taken to the Appellate Division. (Lentilhon v. Mayor, 3 Sandf. 721 [Gen. T. 1851].) Only one decision proper on several demurrers.] Only one decision and only one judgment arc proper in an action where several demurrers are inter- posed. (Pritz V. Jones, 117 App. Div. 643.) Delay of the clerk in entering a decree in the judgment book does not affect its validity.] The delay of the clerk to enter a final decree in the judg- ment book does not aflfect its validity. (Butler v. Lee, 33 How. Pr. 252; S. C, 3 Keyes, 76 [Ct. of App. 1866] j Lynch v. Gas Light Co., 42 Barb. 591 [Gen. T. 1864].) Delay of a clerk to enter a judgment of which be has given a transcript.] When a judgment roll is filed with a county clerk, and he gives a transcript of the judgment, which is docketed in another county, tlie lien of the judgment in the latter county is not affected by the fact that the clerk did not enter the judgment when the roll was delivered to him. (Steuben County Bank v. Alberger, 78 N. Y. 252 [1879].) Proper judgment where plaintiff recovers less than $50 and defendant recovers costs.] Where plaintiff /eeovers less than $50 and defendant becomes, therefore, entitled to costs it is improper to enter separate judgments; one judgment only should be entered for the difference between the verdict and the costs in favor of the party entitled to it. (Warden v. Frost, 35 Hrm, 141 [1885].) Decree, date of.] A decree is properly dated the day the order was made directing its entry. (Clark v. Clark, 52 St. Bep. 228 [Supm. Ct. 1893]; affirmed without opinion in 13i8 N. Y. 653.) Motion in arrest of judgment must be for defects appearing on the record.] A motion for arrest of judgment in a criminal action could not, be- fore the Code of Criminal Procedure, and cannot now be made, save for some defect that appears upon the record; it may not be based upon proof by affi- davits of facts outside and constituting no part of the record. (People v. Kelly, 94 N. Y. 526 [1884].) ^^Presumption as to lost judgment-roll.] If a judgment-roll cannot be found in the office of the clerk the presumption is, it is lost. (Manderville v. Reynolds, 68 N. Y. 528, 164 N. Y. 211.) Judgment-roll — duty of clerk.] (Bacon v. Grossman, 90 App. Div. 204.) Time for entry.] Municipal Court Act, § 239, requires that judgment be entered immediately after verdict. A failure to do so, however, is a mere irregularity. (Lyons v. Gavin, 43 Misc. 659.) Entry nunc pro tunc] Where an infant bom after application for final judgment, was a necessary party, the court had authority to direct the entry of judgment nunc pro tunc in order to avoid any difficulty arising from the court's retention of the case for consideration. (Jewett v. Schmidt, 108 App. Div. 322.) DOCKET — When a decree in equity should go on the docket.] The decree of a court of equity may never go upon the docket at all. It is only when a certain sum is directed to be paid that it is proper to enter it upon the docket. (Lynch v. Gas Light Co., 42 Barb. 591 [Gen. T. 1864].) Bule 8] Gbneeal Rules of Phactice. 69 Docket sufficient to sustain an execution, though no entry is made in the judgment book.] A docket of a judgment held sufficient to sustain an execution, although no entry was made in the judgment book until after its • being issued. (Appleby v. Barry, 2 Uobt. 689 [Gen. T. 1864].) Docket, in county clerk's office, of judgment of United States court.] A judgment of a United States court, though docketed in a county clerk's office, still remains a judgment of that court. (Goodyear Vulcanite C!o. v. Fris.selle, 22 Hun, 174 [1880]. See Cropsey v. Crandall, 2 Blatch. 0. C. 341; U. S. R. S. 967; Meyers v. Tyson, 13 Blatch. C. C. 242 [1876].) LIEN — Docket, unnecessary except to create a lien.] The docketing of a judgment is only necessary for the purpose of creating a lien upon land. (Whitney v. Townsend, 67 N. Y. 40 [1876].) When the lien attaches.] The lien of a judgment does not attach until docketed; and as the lien is entirely regulated by statute, equity cannot extend it. (Buchan v. Sumner, 2 Barb. Ch. 165 [Chan. 1847]; Foot v. Dillaye, 65 Barb. 521 [Gen. T. 1873].) Failure to index a judgment avoids the lien.] A judgment which the county clerk, in docketing, omitted to index against the judgment-debtor, does not become a lien upon his real estate, and the judgment-creditor for thajt reason cannot issue execution upon it by leave of the court at the expiration of a year from the death of the judgment-debtor under Code of Civil Pro- cedure, section 1380. (Lefevre v. Phillips, 81 Hun, 232 [1894].) When the judgment is filed with the clerk out of ofSce hours. All judg- ments filed and docketed by a clerk out of office hours, although some may be entered before others, take effect and become liens equally at the next office hour after such docketing. (France v. Hamilton, 26 How. Pr. ISO [Gen. T. 1862]; Warden v. Mason, 10 Wend. 573 [1833]. See, also, Hathaway v. Howell, 54 N. Y. 97 [1873].) Lien suspended on appeal and restored.] Where the lien of a judgment has been suspended during an appeal by an order of the court, and an order has thereafter been made vacating such order of suspension and restoring the lien nunc pro tunc, the lien is subordinate to that of a judgment docketed in the interval between the two orders. (Harmon v. Hope, 87 N. Y. 10 [1881].) Continuance of lien.] Since the Code of Civil Procedure took effect (§ 1251) the lien of a judgment only continues for ten years irrespective of other rights, intervening. (Floyd v. Clark, 2 Monthly L. Bull. 36 [N. Y. Com. PI. 1880].) ^Duration of lien.] An award made by a city for the taking of a judg- ment-debtor's real estate for a public use, is personal property, and the ten- year limitation as to liens on real estate has no application. (Fawcett v. City of New York, 112 App. Biv. 155.) Judgment against executors — what is boimd by.] (See People ex rel. Higgins V. McAdam, 84 N. Y. 295 [1881].) ERRORS — Amendment of.] An entry made by a clerk in his minutes may be amended, so as to correct an error therein. (Smith v. Coe, 7 Robt. 477 ISp. T. 1868].) ^0 OouETS OF Eecokd. [[Rule 9 RULE 9. Appearance — How Entered. Eule 9 repealed, 1910. CODE OF CIVIL PROCEDURE. § 55. A party may appear in person or by attorney. § 60. When resident of adjoining State may appear as an attorney — serv- ice, how made upon him. § 66. Lien of an attorney. See Judiciary Law, §§ 474, 475. § 421. Appearance by defendant — ^how made — ^requisites of notice of. § 424. Voluntary appearance — equivalent to the personal service of a sum- mons. § 479. Notice of appearance may contain demand for copy complaint. § 1995. Parties to a special proceeding by State writ — may appear by attorney. § 2528. Appearance in Surrogate's Court. § 2886. Appearance in Justice's Court. i§ 3364, 3365. Appearance in a condemnation proceeding. See notes under Rule 18. APPEARANCE — Authority of attorney assumed.] The authority of an attorney signing a petition will be assumed unless the contrary appears. (People ex rel. Adams v. Coleman, 41 Hun, 307 [Sup. Ct. 1886]; People v. Lamb, 85 id. 17 [1895].) An appearance by an attorney, without authority, gives jurisdiction.] (Ferguson v. Crawford, 7 Hun, 25 [Gen. T. 1876] ; Brown v. Nichols, 42 N. Y. 26. See, also, Korman v. Grand Lodge of United States, 44 Misc. 564.) No jurisdiction acquired by a notice of appearance from an unauthor- ized attorney.] A notice of appearance from an attorney who acta without authority confers no jurisdiction on the court. (Burton v. Sherman, 20 W. Dig. 419 [Sup. Ct. 1884].) Unauthorized appearance in a Justice's Court.] (Sperry v. Reynolds, 65 N. Y. 183 [1875].) Unauthorized appearance for a nonresident.] In an action brought in the Supreme Court of the State of New York to establish a lien on real estate situated in that State, the unauthorized appearance of attorneys in behalf of one of the defendants, a nonresident owner of the real estate, does not confer jurisdiction upon the court to render a judgment directing the sale of the real estate in satisfaction of the lien, and the nonresident is entitled, as a matter of right, to have the judgment vacated and the appearance set aside, although no personal judgment was demanded or recovered against such nonresident defendant. (Myers v. Prefontaine, 40 App. Div. 603 [1899] ; Matter of Estate of Stephani, 75 Hun, 188 [1894].) Voluntary — effect of.] Voluntary appearance is equivalent to per- 1 Hule 9] General Eules of Peactice. 71 Bonal service. (Schwinger v. Hickox, 46 How. Pr. 114 [Supr. Ct. Sp. T. 1873] j Code of Civil Procedure, § 424.) Notice — not signed, etc., a nullity.] A notice in an action not signed ty the attorney serving it, and in which his place of business is not men- tioned, is a nullity. (Demelt v. Leonard, 19 How. Pr. 182 [Gen. T. I860]; Yorks V. Peck, 17 id. 192 [Gen T. 1858]; Brown v. Cook, 2 id. 40 [Sp. T. 1845].) Extension of time to appear.] The court should not grant an exten- sion of time to appear. (Bragelman v. Berding, 15 Abb. Pr. [N. S.] 22 [N. Y. Com. PI. Sp. T. 1873].) Appearance by executor.] Where an executor was sued, in his capacity as executor, and also individually, he may appear in each capacity by a dif- ferent attorney. (Roche v. O'Connor, 95 App. Div. 496.) WHAT CONSTITUTES AN APPEARANCE — By notice of appearance or a copy of an answer or demurrer, only.] Under section 421 of the Code of Civil Procedure, a defendant can only appear by serving a notice of appear- ance or a copy of a demurrer or answer. (Valentine v. Myers Sanitary Depot, 36 Hun, 201 [1885].) When an answer verified by a defendant not a resident of the State does not constitute a general appearance.] Where a summons is served with- out the State, service of an answer verified by defendant or subscribed by a person as attorney for defendant cannot be regarded as a general appearance in the action so as to confer jurisdiction of the defendant, where the answer sets up the fact that the defendant was not, at the time of the commence- ment of the action, a resident of the State, and that he had no property therein, and had not been served with a summons in this State. (Ham- burger V. Baker, 35 Hun, 455 [1885].) Motion, by a defendant not served.] The defendant corporation in this case, although it had not been served with a copy of the summons and ■complaint, moved, without serving any formal notice of appearance, to have the complaint made more definite and certain; thereupon the plaintiff procured an ex parte order discontinuing the action as to the corporate defendant. Held, that this was proper; that the service of the notice of motion was not equivalent to an appearance. Under section 421 of the Code of Civil Pro- cedure, a defendant can only appear by serving a notice of appearance or a copy of a demurrer or answer. (Valentine v. Myers Sanitary Depot, 36 Hun, 201 [Gen. T. 1885].) Notice of motion.] Service of notice of motion signed by an attorney as "att'y for deft." (Ayer v. Western R. R. Co., 48 Barb. 132 [Gen. T. 1866]; Kelsey v. Covert, 15 How. Pr. 92 [Sp. T. 1857]; S. C, 6 Abb. 336, n; McKenster v. Van Zandt, 1 Wend. 13 [Sup. Ct. 1828] ; Dole v. Manly, 11 How. Pr. 138 [Sp. T. 1855] ; Baxter v. Arnold, 9 id. 445 [Sp. T. 1854] ; Valentine v. Myers Sanitary Depot, 36 Hun, 201 [1885] ; Cohen v. Levy, 27 Misc. Rep. 330 [1899], See, however, as to effect of such appearance, Douglas v. Haberstro, 8 Abb. N. C. 240 [1880]. Signing a paper to produce a defendant, as attorney for defendant, New Haven Web Co. v. Ferris, 115 N. Y. 641 [1889].) Notice of retainer. It is as effectual as if the defendant had entered ^^ OouETS OF Ejscoed. [Rule 9 his appearance with the clerk. (Francis v. Sitta, 2 Hill, 362 [Sp. T. 1842]. See, also. Reed v. Chilson, 142 N. Y. 152 [1894].) Notice of bail.] Notice of bail imports notice of retainer as attorney. (Quick V. Merrill, 3 Caines, 132 [Sup. Ct. 1805].) Notice to vacate attachment is not a general appearance.] A service of notice to vacate an attachment, though without qualification, does not amount to an appearance generally. (Wood v. Furtick, 17 Misc. Eep. 561 [1896].) 'Appearance upon a motion.] Where a corporation appears generally upon the first hearing of a motion, and consents to a reference to take testimony, it cannot afterward object to the jurisdiction of the coiurt over it. (Ward V. Roy, 69 N. Y. 96 [1877].) Opposing a motion for an injunction.] It was held that defendants, by appearing in this action by counsel and opposing a motion for an injunc- tion, and reading afiidavits in opposition to such motion, and filing the same, with the names of their attorneys in the action indorsed thereon, and by moving that all proceedings in the ax;tion be stayed, had submitted themselves to the jurisdiction of the court, and appeared in the action unconditionally. (Cooley V. Lawrence, 5 Duer, 605 [Gen. T. 1855].) Appearance on motion for alimony.] Where a wife, after obtaining from the New Jersey Court of Chancery a decree of divorce from her hus- band, upon the service of process upon him by publication, makes a motion to amend the decree by inserting therein a provision for alimony, the general appearance on the motion of the husband's solicitor, who contests it on juris- dictional grounds and upon the merits, operates to confer jurisdiction on that court to render a judgment for alimony which will be recognized as valid by the courts of the State of New York. (Lynde v. Lynde, 41 App. Div. 280 [1899].) Affidavit and notice of motion.] Service of affidavits and notice of motion to set aside a judgment of foreclosure entered by default, indorsed "F. W. T., attorney for defendant L." (Martine v. Lowenstein, 6 Hun, 225 [Gen. T. 1875].) Order extending time.] Service of an order extending the time to answer, with a copy of the affidavit upon which it was founded, which stated the name of the defendant's attorneys. (Quin v. Tilton, 2 Duer, 648 [Sp. T. 1853]; Carpenter v. The N. Y. & N. H. R. R. Co., 11 How. Pr. 481 [Sp. T. 1855]. See Brett v. Brown, 13 Abb. Pr. [N. S.] 295 [1872]; Thomas v. Jones, 3 Monthly L. Bull. 36 [1881].) Procuring an extension of time to answer not an appearance.] The procuring of an extension of time to answer by an attorney does not consti- tute an appearance in the action nor prevent another attorney from putting in an answer without procuring a substitution. (Benedict v. Arnoux, 1 N. Y. Anno. Cases, 407 [1895].) Stipulation signed " defendant's attorney."] A stipulation extending the time to answer signed by an attorney as " defendant's attorney " does not prevent the service of the answer by another attorney. (Paine Lumber Co. V. Galbraith, 38 App. Div. 68 [1899].) Eule 9] Geneeal Rules of Peactice. 73 Cross-examination by an unauthorized person not an appearance.] The cross-examination of witnesses in a Municipal Court, by a person not authorized, held not to constitute an appearance in the action by the party. (Campbell v. Lumley, 24 Misc. Eep. 196 [1898].) As to appearance for defendant residing in other State.] (See Prieh- ard V. Sigafus, 103 App. Div. 525. HOW DETERMINED — Decision as to, not appealable.] In an action pend- ing in the Supreme Court, it is for that court to decide whether there was a sufficient appearance by an attorney therein, and its decision is not appealable to the Court of Appeals. (Martine v. Loweustein, 15 Albany Law Journal, 124 [Court of Appeals, 1877].) An appearance in a State court, by what rules considered.] The entry of an appearance in a State court must be interpreted by the course and practice of that court; and that what is held in such court to be a submission to its authority in the cause, whether coerced or voluntary, must be deemed an appearance, and further, when such submission has once been made it can- not be retracted. (Cooley v. Lawrence, 5 Duer, 605 [Gen. T. 1855].) BY WHOM AND WHEN — A husband may direct an appearance to be entered for his wife.] When the separate property of the wife is not in question, service on the husband is a good service on the wife, and he is authorized to direct an appearance to be put in for her. (Lathrop v. Heacock, 4 Lans. 2 [Gen. T. 1871]. See, however, White v. Coulter, 1 Hun, 366 [Gen. T. 1874]; Nagle v. Taggart, 4 Abb. N. C. 144 [Sp. T. 1877]; Watson v. Church, 3 Hun, 80 [Gen. T. 1874]; Foote v. Lathrop, 53 Barb. 183 [Gen. T. 1869]; S. C, 41 K Y. 358.) Effect of,, by partners, where only one has been servedi] Where a notice of appearance for both defendants is served and accepted in an action against partners, one of whom only was served, such appearance gives the defendant not served all the rights of a party actually served, and the plain- tiff is bound to accept an answer and notice of trial served on behalf of such defendant. (Fox v. Brooks, 7 Misc. Rep. 426 [N. Y. City Ct. 1894].) When the counsel may be regarded as the attorney.] Where a counsel, who is to try a cause signs his name as attorney both before and after the decease of the attorney of record, he may be deemed to be the attorney by the opposite party. (Cambridge Valley National Bank v. Matthews, 1 Law Bulletin 10 [Sp. T. 1878].) When a party may appear.] A party to a suit brought for the fore- closure of a mortgage may serve a notice of appearance at any stage of the action (e. g., after entry of judgment), and is thereafter entitled to notice of all subsequent proceedings. (Martine v. Lowenstein, 6 Hun, 225 [Gen. T. 1875] ; affirmed, 68 N. Y. 456.) In person — not allowed when an attorney appears.] A party who has appeared by attorney cannot, while the retainer continues, appear on the record in person. (Halsey v. Carter, 6 Robt. 535 [Sp. T. 1866].) An attorney precluded from acting after he has given a consent for substitution to his client.] A consent for substitution given by an attorney to his client precludes the attorney from acting subsequently in the action. ^^ OoTJETS OF Kecoed. [Eule 9 notwithstanding the fact that no order has been entered on that consent. (Quinu V. Lloyd, 5 Abb. [N. S.] 281 [N. Y. Sup. Ct. Sp. T. 1863].) Appearance in Justice's Oourt — effect of appearance specially in Justice's Court and when authority ends.] (Cutting v. Jessimer, 104 App. Div. 283.) EFFECT OF — A waiver of want of jurisdiction over the person.] A gen- eral appearance by a defendant is a waiver of any want of jurisdiction in the court over his person. {Palmer v. The Phoenix Mut. Life Ins. Co., 10 N. Y. W. Dig. 179 [Gen. T. 1880] ; Wheelock v. Lee, 15 Abb. Pr. [N. S.] 24 [Gen. T. 1873] ; Schwinger v. Hickox, 46 How. Pr. 114 [Sup. Ct. Sp. T. 1873] ; Schmal- hotz V. Polhaus, 49 id. 59 [Supr. Ct. Gen. T. 1875], and Dieckerhoff v. Alder, 12 Misc. Rep. 445 [1895]. Jurisdiction over the person admitted by an appearance and answer.] Where the court has jurisdiction of the subject-matter of an action, consent will confer jurisdiction of the person, and in case of a foreign corporation such consent may be expressed by appearing by attorney and answering gen- erally in the action. (McCormick v. Railroad Co., 49 N. Y. 303 [1872].) Objection to jurisdiction waived by appearance and demurrer.] Where it was claimed that an appeal should be dismissed as to a nonresident defend- ant, because the process was not properly served, it was held, that the de- fendant, by appearing and demurring, thereby waived all objections to the regularity or sufficiency of the service. (Ogdensburg & L. C. R. R. Co. v. Vermont & C. R. R. Co., 63 N. Y. 176 [1875]. See, also, Sweetzer v. Kembert, 11 Misc. Rep. 107 [1895].) Waives defects in service.] A general appearance, only, waives defects in service of process. (Brett v. Brown, 13 Abb. Pr. [N". S.] 295 [Sp. T. 1872] ; Carpentier v. Minturn, 65 Barb. 293 [Gen. T. 1873]; Mack v. American Ex- press Co., 20 Misc. Rep. 215 [1897].) ^Voluntary appearance by the United States.] By a voluntary appear- ance in a State court, as a claimant to a fund, the United States becomes subject to the jurisdiction and bound by the decision of the State court. (Johnston v. Stimmel, 89 N. Y. 117 [1882].) — — Appearance where an attachment is issued.] A voluntary appearance is as effective as the actual service of the summons within thirty days after the service of an attachment. (Catlin v. Rieketts, 91 N. Y. 668 [1883].) Appearance of nonresident by attorney confers jurisdiction.] In an action to recover money, brought upon a Michigan judgment, the summons was served out of the State, pursuant to an order of publication, upon defendants, who were nonresidents. A warrant of attachment was also issued, but no property was levied upon. Defendants entered a general appearance by an attorney, who served a general notice of retainer. An answer was served alleging that neither of the defendants was a resident of the State, nor had they any property therein, and that the court had no jurisdiction. Held, that the appearance and notice gave jurisdiction, and that a personal judg- ment was properly rendered. (Reed v. Chilson, 142 N. Y. 152 [1894].) An appearance for a corporation sustained, though it was improperly served with the summons.] An appearance for a corporation by officers of the court will be valid and give jurisdiction, whether the service of process upon Hule &] Geneeal Eules of Peactice. 75 its officers be good or not, provided the corporation is still in. existence. (Murray v. Vanderbilt, 39 Barb. 141 [Sp. T. 1863].) When general appearance precludes raising the question whether the action might be brought under Code Civil Procedure, section 1780.] A general appearance by a foreign corporation after personal service, gives the court jurisdiction, and precludes its raising the question, on a motion to set aside the service, whether the afCtion is one which could be brought by a nonresi- dent, under Code Civil Procedure, section 1780, and such question should be raised by demurrer or answer. (Mabon v. Ongley Electric Co., 24 App. Div. 50 [1897].) -- — Appearance by an alien and nonresident.] Where, in an action com- menced against him, a nonresident alien appears generally, the court acquires jurisdiction, and the fact that the appearance was put in, in order to protect his property, imperiled by the issuing of an attachment in the action, does not change the effect of the appearance. (Olcott v. Maclean, 73 N. Y. 223 [1878]; Reed v. Chilson, 142 N. Y. 152. See, also. Woodruff v. Austin, 16 Misc. Eep. 543 [1896].) A general appearance by one sued in a local court — does not admit its jurisdiction over the subject-matter.] A general appearance by a defendant sued in a local court — as for instance, the City Court of Brooklyn — does not waive his right to object in his answer that the court has no jurisdiction of the subject-matter of the action, if the case is such that the only element of locality which can exist, and the only means by which the cause can be brought within the territorial limits of jursdiction of the court as a local court, is the service of the summons within those limits. (Wheelock v. Lee, 5 Abb. N. C. 73 [Gen. T. City Court of Brooklyn, 1878].) As to waiver objection to the jurisdiction of the court. (iSee Matter of Hathaway, 71 N. Y. 238 [1877].) ^Waiver, in a case where the demurrer to the jurisdiction of the court over the person of the defendant and the appearance is a qualified one. (See 0. & L. C. R. R. Co. v. Vt. C. R. R. Co., 16 Abb. [N. S.] 249 [Sp. T. Sup. Ct. 1874] ; 4 Hun, 712.) BY OWE NOT SERVED — A defendant not serrcd cannot appear.] A defendant cannot appear and plead in a cause as a matter of course, never liaving been served with a process. (McKnight v. Baker, 1 How. Pr. 201 [Sp. T. 1845].) A defendant not served cannot move to dismiss the complaint.] One of several defendants who has not been served with a summons or complaint cannot voluntarily appear and move to dismiss the complaint under section 274 of the Code of Procedure, where his rights are not affected. He must be contented to remain quiet out of court until invited to appear there. (Tracy V. Tucker, 7 How. Pr. 327 [Sp. T. 1852]. See, also, Valentine v. Myers Sanitary Depot, 36 Hun, 201 [1885].) A defendant against whom judgment is asked for has a right to appear although not served.] A defendant against whom a judgment is prayed by the ■complaint, although no summons has been served on him, has a right to appear and answer. (Higgins v. Freeman, 2 Duer, 650 [Sp. T. 1853]; and this. '^ CouKTs OF Kegoed. [Eule 9 although he has been adjudged a bankrupt. MoLoughlin v. Bieber, 26 Misc. Rep. 143 [1899].) A partner not served may appear.] In an action againat partners on a joint liability, a defendant, though not served, is entitled to appear and answer. (Wellington v. Claason, 9 Abb. 175 [Chamb. 1859] ; Fox v. Brooks, 7 Misc. Rep. 426 [N. Y. City Ct. 1894].) Motion by a partner not served to set aside a judgment regularly entered against the firm.] On a motion by one partner to set aside a judgment on the ground of collusion between the plaintiff and the other partner, entered in form against the firm, in precise conformity to the statute ; that iSj by service of pro- cess on one only, without any appearance by the defendant not served, the court entertained the application, and it was held that the court should not sanction any act which would encourage concealment and contrivance between partners, who owe each other confidence and good faith. (Griswold v. Griswold, 14 How. Pr. 446 [Sp. T. 1S57].) OBJECTION — To the right to appear, when it should be taken.] An objec- tion to the right of plaintiff's attorney to appear and bring the suit, must be raised by a motion before trial, since it is a question of practice, not of title or jurisdiction. (People v. Lamb, 85 Hun, 171 [1895].) PROOF OF AUTHORITY — What proof of his authority to appear required of an attorney in an action to recover real estate.] Where the authority of an attorney to bring an action for the recovery of the possession of real estate adversely held is questioned by a party whose name appears as one of the plaintiffs, the attorney must produce a " written request of such plaintiff, or his agent, to commence such action," or a " written recognition of the author- ity of the attorney to commence the same." (Stewart v. Bailey, 56 How. Pr. 256 [Chamb. 1878]. See Code of Civil Procedure, § 1512.) It is discretionary with the court to require an attorney to show his authority to appear.] As a general rule when the right of an attorney to use the name of a plaintiff is questioned by the opposite party, if the attorney be a reputable member of the bar, the court 'will not, unless the action be one for the recovery of land, require proof of the authority to be produced; but the right of the court to require its production in all eases is undoubted, and it will be exercised when, in its judgment, the ends of justice demand it. (Stewart v. Bailey, 56 How. Pr. 256 [Chamb. 1878].) Extent of inquiry as to authority.] On a motion to compel an attorney to produce his authority for bringing an action for a foreign corporation, the court will not go into the question whether such corporation has forfeited its charter, nor pass on the question whether its president had power to authorize such action. (Havana City R. Co. v. Ceballos, 25 Misc. 660 [1898].) Ejectment — proof of authority must be filed.] In an action of eject- ment the plaintiff's attorney may be compelled to file and serve written evi- dence of his authority to sue. (Stewart v. Hilton, 27 Misc. 239 [1899].) Where one appears for defendant in another State — burden of proving authority for appearance.] (See Prichard v. Sigafus, 104 App. Div. 535.) RELIEF FROM UNAUTHORIZED APPEARANCE — When a judgment wiU not be set aside because an appearance was unauthorized.] Upon a motion to Eule 9] General Eules op Peactice. 77 set aside a judgment entered by default, held, that as the appearance was reg- ular in form, the court acquired jurisdiction of the person of the defendant, and that, as it was not alleged that the attorneys were insolvent, the judgment should not be set aside for the sole reason that their appearance was in fact unauthorized. (Powers v. Trenor, 3 Hun, 3 [1874].) ■' Unauthorized appearance for one cot a partner in a firm represented.] The unauthorized appearance by an attorney for one who claimed not to be a partner in the firm the attorney represented held not to make the judgment conclusive upon such party, no rights of third persona having intervened. (American A. & P. Paint Co. v. Smith, 90 Hun, 609 [1895].) Laches.] Relief from an unauthorized appearance will not be granted when the moving party has been guilty of laches. (Marston v. Johnson, 18 How. Pr. 93 [Gen. T. 1856]; Fry v. Bennett, 16 id. 385 [Sp. T. 1858]; Humph- rey V. (3hamberlain, 11 N. Y. 274 [1854]. See Burton v. Sherman, 2.0 W. Dig. 419 [Sup. Ct. 1884]; Ferguson v. Crawford, 7 Hun, 25 [1876]; Brown v. Nichols, 42 N. Y. 26.) Not set aside where the attorney has died and there is laches.] The court should not grant a motion to set aside the appearance of an attorney who has not authority to appear, when the attorney has died and there is laches. (Vilas V. Butler, 29 St. Rep. 664 [Sup. Ct. 1890].) When an unauthorized appearance works no injury it will not be stricken out.] Where it is shown that an attorney who appeared in an action was not authorized to appear therein, and that injustice will be done by allow- ing the appearance to stand, the court, upon the application of a party whose rights are imperiled, will take adequate measures for their protection; but where an unauthorized appearance works no injury, a motion to strike it from the record is properly denied. (Brower v. Kahn, 76 Hun, 68 [1894].) No remedy in a collateral proceeding.] As a general rule and unless some peculiar and extraordinary circumstances appear, where a party appears in a court of record by an attorney, the objection that he was not served with process and that the appearance was unauthorized may not be taken in a collateral proceeding or action, but the party is confined to a motion in the original action in order to obtain relief. (Washbon v. Cope, 144 N. Y. 287 [1895]; Vilas v. P. M. R. R. Co., 123 id. 440 [1890].) An unauthorized appearance for a nonresident.] An unauthorized ap- jreiarance by attorneys for a nonresident defendant in an action to establish a lien upon real estate of such nonresident does not confer jurisdiction. (Myers V. Prefontaine, 40 App. Div. 603 [1899].) Appearance by person forbidden to practice.] Attorney sending one to appear for him who is not authorized to practice cannot afterwards take that objection. (Kerr v. Walter, 104 App. Div. 45.) May be disputed by judgment-debtor.] Where a judgment recites that the debtor appeared by a certain attorney, it is conclusive, but the question of his authority to appear may be disputed in an attempt to enforce judgment. (Korman v. Grand Lodge of U. S., 44 Misc. 564.) PLACE OF RESIDENCE — How determined.] An attorney has the right himself to decide where he resides. (Rowell v. MoCormick, 5 How. Pr. 337 [Sp. T. 1850] ; S. C, 1 Code R. [N. S.] 73.) '^S CkjUETS OF Eecoed, [Rule 9 Service by mail at.] And after such decision, service by mail can only be made by him at the place indicated, and the opposite party can only make service upon him by mail by addressing him at that place. (Hurd v. Davis, 13 How. Pr. 67 [Sp. T. 1856]; Rowell v. McCormick, supra.) Relates to the post ofSce.] The words "place of residence," relate to the post office, and not to any particular locality in a town or city. Therefore, held, that service of a copy complaint mailed at Fonda, N. Y., directed to the defendant's attorneys " New York," was good, although the latter signed their notice of aprpearance, "No. 52 Grove street, in the city of New York." (Oath- out V. Ehinelander, 10 How-. Pr. 460 [Sp. T. 1855]; Rowell v. McCormick, supra. ) FOREIGN JUDGMENT — Recital of appearance in the record of.] The rec- ord of a judgment of another State which recites that defendant appeared by attorney is only presumptive evidence of authority in the attorney. (Howard v. Smith, 42 How. Pr. 300 [Supr. Ct. Gen. T. 1870] ; S. C, 1 J. & S. 124.) WITHDRAWAL OF APPEARANCE — It may be withdrawn on payment of costs.] When, under misapprehension as to his authority, an attorney, instead of specially appearing in an action, appears generally, his notice of appearance may be withdrawn upon his paying the costs of motion. (Dilling- ham v. Barron, 26 N. Y. Supp. 1109 [N. Y. Supr. Ct. 1803]. See, also. Hunt V. Brennan, 1 Hun, 213 [1874].) SPECIAL APPEARANCE — What demand of notice of execution of any reference or writ of inquiry entitles defendant thereto.] Where defendant does not appear generally, but only demands notice of the execution of any refer- ence or writ of inquiry which might be granted, he is merely entitled to five days' notice of such reference, and not to notice of an application for the appointment of a referee or to notice of motion to confirm the referee's report, and he oannot upon motion attack the sufficiency of the evidence before the referee. (Arkenburgh v. Arkenburgh, 14 App. Div. 367 [1897].) An objection specially to jurisdiction is good ground for extending time to appear generally and to plead.] Where a nonresident defendant appeared specially to object to the jurisdiction and to move to set aside an order for the publication of the summons in the action, held, that his motion to extend the time to appear generally and to plead, until the determination of the appeal taken from an order adverse to his contention, should be granted, the objec- tion to the jurisdiction being substantial. (Everett v. Everett, 22 App. Div. 473 [1897].) Prohibition to act not avoided by.] A new attorney prohibited, by order, from acting cannot avoid the same by a special appearance. (Sheldon v. Mott, 84 Hun, 608 [1895].) By nonresident.] A nonresident may appear specially. (Reed v. Chil- son, 142 N. Y. 152.) REMOVAL TO U. S. COURT — Time of removal — not restricted to that of entering appearance.] The provision of subdivision 1 of section 639 of the Revised Statutes, requiring the petition of removal to be filed in the State court at the time of entering an appearance of defendants, is repealed by sec- tion 2 of the act of March 3, 1875 (Chap. 137). (La Mothe Mfg. Co. v. The Rule 10] General Rules of Practice. 79 National Table Co. Works, 7 Reporter, 138 [U. S. Ct., S. D. of N. Y. 1879].) As to appearance in Surrogate's Court.] (See Code of Civil Prooedure, § 2028. ) RULE 10. Change of Attorneys — How Made. An attorney may be changed by consent of the party and his attorney, or upon application of the client upon cause shown and upon such terms as shall be just, by the order of the court or a judge thereof, and not otherwise. Rule 12 of 1858. Rule 15 of 1871, amended. Rule 15 of 1874. Rule 10 of 1877. Rule 10 of 1880. Rule 10 of 1884, amended. Rule 10 of 1888. Rule 10 of 1896. See notes tmder Rules 9 and 11. SUBSTITUTION — Nature of appUcation.] An application by a client to change his attorney is not a motion in the action but is a summary proceed- ing, addressed to the discretion of the court. The failure of a referee appointed to determine the compensation of an attorney, to report within sixty days, does n^ot entitle a party to end the reference by a notice under section 1019 of the Code. Semile, such a reference is to be deemed made under section 827 and not section 1015 of the Code. (Matter of Doyle v. Mayor, 26 Misc. 61 [1899].) Jurisdiction of the Supreme Court on motion or in special proceeding.] The Supreme Court has, jurisdiction, either upon a motion or in a special pro- ceeding, to determine controversies arising out of the professional relations of attorneys and clients, and upon what terms attorneys shall be changed in pending actions. (Matter of Barkley, 42 App. Div. 597 [1899].) When allowed.] A party has no right, without showing any cause ex- cept his own will, to substitute one attorney for another without payment of the costs earned. (Supervisors of Ulster County v. Brodhead, 44 How. Pr. 411 [Sp. T. 1873]; Creighton v. Ingersoll, 20 Banb. 541 [G«n. T. 1855]. See Haz- lett v. Gill, 5 Robt. 611 [Sp. T. 1866] ; Wolf v. Trochelman, Id. [Sp. T. 1866] ; Hoffman v. Van Nostrand, 14 Abb. 336 [Chambers, 1862-].) Substitution allowed — where the only service rendered by the original attorney was to make an appearance.] (People's Bank v. Thompson, 63 N. Y. St. Repr. 165 [1894].) Payment of costs.] A substitution of attorneys may be ordered with or without the condition of the payment of costs. (Sheldon v. Mott, 91 Hun, 637 [1895].) What the order of substitution should direct — reference to fix compen- sation.] An order directing substitution should not require the attorney to give up his connection with all actions in which he is attorney for the client, without providing for the settlement of all matters between the attorney and client, fixing the amount due him and arranging for payment. The General 80 OouETs OF Recoed. [Eule 10 Term may appoint a referee to fix his compensation. (City of Philadelphia v. Postal Telegraph Cable Co., 1 App. Div. 387 [1896].) Where an attorney has been guilty of misconduct.] Where an attorney has misconducted himself, the court will order an unconditional substitution. (Pierce v. Waters, 10 W. Dig. 432 [1880].) Improper and neglectful conduct.] Where the attorney's conduct has been improper and neglectful, the court will deny its protection as to his fees, and will direct an unconditional substitution, leaving the attorney to his action for his fees. (Matter of Prospect Avenue, 85 Hun, 257 [1895].) Omitting necessary parties.] Where, through an attorney's neglect, nec- essary parties defendant were omitted, it was held that a new attorney should he substituted without conditions, the former attorney having agreed with the plaintiif that no expense should be incurred, and his services having been value- less. (Reynolds v. Kaplan, 3 App. Div. 420 [1896].) When substitution allowed.] Eight of the plaintiff, who has brought the action under an agreement by which he represents other claims than his own, to substitute attorneys, where that will result in a discontinuance which will cause the other claims to be barred by the Statute of Limitations. (Hirsh- feld V. Bopp, 5 App. Dir. 202 [1896]; 157 N. Y. 1C6.) Right of a client to change his attorney is absolute — lien for fees.] A client has a right to change his attorney at his own volition, whatever may ba his motive, whether a mere caprice or a substantial reason. The relation requires the most unlimited confidence and perfect harmony. The attorney has no claim upon papers placed in his hands, except the lien upon them to secure costs and fees; and even this lien will be, under certain circumstances, so mod- ified as to compel him to produce such documents upon an emergency pressing for their use. (Trust v. Repoor, 15 How. Pr. 570 [Supr. Ct. Sp. T. 1856]; Ogden V. Devlin, 13 J. & S. (45 N. Y. Supr. Ct.) 631 [1879]. See, also, Matter of Davis, 7 Daly, 1 [1897].) — — Consent of attorney alone not enough.] The consent of an attorney himself is not sufScient to authorize the substitution of another attorney in his place. (Buckley v. Buckley, 45 St. Rep. 827 [Sup. Ct. 1892]; F^t v. Nich- ols, 21 Misc. 404 [1897].) Consent of court to.] An attorney cannot be changed without leave of the court or an order of a judge of the court. (Krekeler v. Thaule, 49 How. Pr. 138 [Sp. T. Com. PI. 1875].) An order ot substitution is essential.] A person cannot be substituted as an attorney in the suit merely by filing the written consent of the first attorney, but in all cases an order of the court is necessary to render the sub- stitution valid. (Roy v Harley, 11 N. Y. Leg. Obs. 29 [Sp. T. 1852].) When it takes effect.] Until the usual order of substitution is entered, and notice thereof served, the adverse party will be entirely justified in treat- ing only with the attorney who first appeared in the action. (Parker v. City of Williamsburgh, 13 How. Pr. 250 [Sp. T. 1856]; Robinson v. MeClellan, 1 id. 90 [Sp. T. 1845].) —^Service of notice without order, sufficient.] It is sufficient to serve notice of substitution; the order need not be served. (Bogardus v. Richtmeyer, 3 Abb. 179 [Sp. T. 1856]; Dorlon v. Lewis, ! How. Pr. 132 [Gen. T. 1852].) Kule 10] Geneeal Eules of Practice. 81 ——'Where one attorney is retained, a second can act only after being duly substituted.] Where an attorney is retained, another attorney cannot act for the party without being regularly substituted, and the act of such second attorney will be disregarded by the court. (Jerome v. People, 1 Wend. 298 [1828].) Attorney retiring from a suit — when he loses his claim for compensa- tion.] An attorney retained generally to conduct a legal proceeding enters into an entire contract to conduct the proceeding to its termination, and if, before such termination, he abandons the service of his client without justi- fiable cause and reasonable notice, he cannot recover for the services he has renclaired. The employment, however, by the client, without the consent of his attorney, of a counsel, with whom he cannot cordially co-operate, is a justifiable cause for his withdrawal from the case. (Tenney v. Berger, 93 N. Y. 524 [1883]; Picard v. Picard, 83 Hun, 338 [1894].) Attorney's withdrawal not justified by a failure to pay his fees.] To maintain his lien, the attorney must show performance on his part, or a con- dition clearly justifying his withdrawal. Where he refuses to proceed in an action, on the ground that his fees are not paid, and to permit another attor- ney to conduct the cause, he may be compelled to submit to the substitution by order of the court. (Halbert v. Gibbs, 16 App. Div. 128 [1897].) -Wrongful substitution of attorney.] An order removing an attorney and substituting another was hfeld erroneous, in the absence of proof of mis- canduot or delay, where the attorney had begun a foreclosure suit under an agreement to receive one-half of the recovery, including the costs, and where the bond and mortgage were sold by a receiver in supplementary proceedings. (Steenburgh v. Mller, 11 App. Div. 286 [1896].) When an appeal is pending in the Court of Appeals ;— application should be made to the court below.] Where, after appeal to the Court of Appeals the appellant's attorneys at her request substitute another attorney in their place, a motion for an order directing the former attorney to turn over the papers in the case to the substituted attorney is not properly made in the Court of Appeals, but should be made in the court below. (People ex rel. Hofi'man v. Board of Education, 141 N. Y. 86 [1894]. See, also, Henry v. Allen, 147 N. Y. 346 [1805].) A long delay justifies it.] Where there has been a long delay in the litigation, an application by the plaintiff for a substitution of attorneys should not be denied, but the court should determine whether substitution should be granted, on payment of the attorney's fees or unconditionally, because of his misconduct. (Barkley v. N. Y. C. & H. E. R. R. Co., 35 App. Div. 167 [1896].) Opposite attorney required to permit inspection of the pleadings by a substituted attorney.] Defendant's attorney may be ordered to allow the inspection of the pleadings and a copy thereof to be made by a lawyer who has been substituted for the plaintiif's attorney, when the plamtiff cannot learn the whereabouts of his former attorney, and does not know the position in which the action stands. (Butterfleld v. Bennett, 30 St. Rep. 302 [Supm. Ct. 1890].) Conclusiveness of a determination of the Appellate Division requiring 82 GouETS OF Eecoed. [Kule 10 substitution.] The Supreme Court has jurisdiction and the Appellate Division has original jurisdiction, either upon ex parte or contested motion or in a special proceeding, to determine controversies arising out of the professional relations of attorneys and clients, and upon what terms attorneys shall be changed in pending actions, and such determination is conclusive upon the delin- quent attorneys, and their privies in the action brought by them against the client. What delay to prosecute establishes such neglect by an attorney as will justify the granting of an order allowing the plaintiff to substitute another in his place, considered. (Matter of Barkley, 42 App. Div. 597 [1899].) Attorney's rights to be protected.] Rights of attorney should be pro- tected where no actual misconduct shown; and when attorney has rendered services and received no compensation therefor, substitution should not be granted without protecting his lien. (Anglo-Continental Chemical Works v. Dillon, 111 App. Div. 418].) Client is ordinarily entitled to change his attorney at his own volition, by order of the court. (People v. Bank of Staten Island, 112 App. Div. 791; Johnson v. Ravitch, 113 App. Div. 810.) An attorney under general retainer has no implied authority to bind his client by contract to sell land. (Matter of City of New York, 112 App. Div. 160.) Where, after judgment is reversed, a party asks for a substitution of attor- neys, and both the attorney and the party consent that fees be fixed by court and declared a lien on any amount recovered, it is proper for the court to make an order determining the amount. (Scheu v. Blum, 124 App. Div. 678.) Court will not stipulate that bond be given.] Court cannot enter order of substitution with the condition that a bond be given to the former attor- ney tio secure his claim for services. (Lederer v. Goldston, 63 Misc. 322.) As to admission of attorneys, see notes under Rule 1, supra. As to appearance of attorneys, see notes under Rule 9, supra. As to stipulations, see notes under Rule 11, infra. AUTHORITY CEASES — Attorney's authority ceases, when.] The author- ity of the plaintiff's attorney ceases on the entry of judgment. (Moore v. Taylor, 40 Hun, 56 [1886].) An attorney precluded from acting, after he has given a consent for sub- stitution to his client.] A consent for substitution, given by an attorney to his client, precludes the attorney from acting subsequently in the action, not- withstanding the fact that no order has been entered on the consent. (Quinn V. Lloyd, 5 Abb. [N. S.] 281 [Sp. T. 1868].) Riile staying proceedings for thirty days after notice in case of death or removal — not applicable after entry of judgment.] The provisions of sec- tion 65 of the Code of Civil Procedure, to the effect that where an attorney dies or is removed before judgment, no further proceeding shall be taken against his client until thirty days after notice to appoint another attorney, does not apply after judgment and preceding an appeal. (Hall v. Putnam, 23 Wkly, Dig. 513 [Sup. Ct. 1885].) ——It ceases with the entry of judgment.] The authority of an attorney Rule 10] General Rules of Pbactice. 8S ceases with the entry of judgment, and the defendant may lawfully employ another attorney to open a default without substitution. (Davis v. Solomon, 25 Misc. 695 [1899]; Magnolia Metal Co. v. Sterlingworth R. Supply Co., 37 App. Div. 366 [1899].) As to Justice's Court see Cutting v. Jessmer, 101 App. Div. 283. After entry of judgment, a new attorney without substitution may sign notice of appeal.] By the entry of judgment an action is ended and the function of the attorney ceases, and a new attorney thereafter employed by the defeated party may sign a notice of appeal without entry of an order of sub- stitution. (Webb V. Milne, 10 Civ. Proe. Rep. 27 [iST. Y. Supr. Ct. Sp. T. 1886].) Substitution for the purposes of an appeal without an order.] Under Rule 3 of the Court of Appeals, a new attorney may be substituted by a party who contemplates an appeal to that court without an order of the court. (Magnolia Metal Co. v. Sterlingworth R. Supply Co., 37 App. Div. 366 [1899].) Appeal cannot be taken by a new attorney unless substituted.] An appeal from a judgment cannot be taken by a new attorney for the party appealing until such attorney has been properly substituted in the place of the former attorney. (Shuler v. Maxwell, 38 Hun, 240 [Sup. Ct. 1885]. See 101 N. Y. 657; contra, Webb v. Milne, 10 Civ. Proc. Rep. [Browne] 27 [Supr. Ct. Sp. T. 1886].) Notice of appeal not signed by the attorney of record — objection, how to be taken.] Where a notice of appeal is signed by an attorney other than the attorney of record, the objection should be raised by a motion to dismiss the appeal. (Thierry v. Crawford, 33 Hun, 366 [1884].) Notice must come from the prevailing party.] Notice of entry of judg- ment, in order to limit the time to appeal therefrom, must come from the pre- vailing party or his attorney; no other party, nor the attorney representing another party, has the power to set running the time which will bar the. appeal. (Kilmer v. Hathorn, 78 N. Y. 228.) When relation exists.] In order to establish relation of attorney and client it is not necessary to show that attorney acted for the client in a legal proceeding. (Sheehan v. Erbe, 103 App. Div. 7.) Acceptance of service of notice of appeal, compelled.] While the author- ity of an attorney ceases at judgment, except that he may take the necessary steps to collect it, the attorney of record may be compelled to ajocept service of a notice of appeal. (Magnolia Metal Co. v. Sterlingworth R. Supply Co.,. 26 Misc. 63 [1899].) The satisfaction of a judgment by the original attorney of itecord, for whom another has been substituted after judgment was recovered, is invalid.] The substitution of another attorney operates as a revocation of the authority of the original attorney of record to satisfy a judgment upon its payment, and a satisfaction executed by such attorney is not conclusive against the substi- tuted attorney where the judgment-debtor had notice of the substitution before payment was made. (Mitchell v. Piqua Club Assn., 15 Misc. 366 [1895].) Liability of attorney after relation ceases.] Where attorney acts for client after the settlement of a claim, unless specially understood, the relation. of attorney and client continues. (Bingham v. Sheldon, 101 App. Div. 48.) 84: CouETs OF Recoed. [Eule 10 When party entitled to order without payment of additional fees.] Where attorney refused "for reasons satisfactory to himself" to further act as attorney for a client, she ia entitled to an order of restitution without pay- ment of additional fees. (Gary v. Gary, 97 App. Div. 471.) ^Applies to surrogates' courts.] Eule 10 held applicable to the Surro- gate's Gourt in Matter of Smith, 111 App. Div. 23. Delegation of authority.] In an action by a client against his attorney, it is error to instruct the jury that as a matter of law the attorney could delegate his power and authority to another without the concurrence of the client. (Lacher v. Gordon, 127 App. Div. 140.) LIEN OF AN ATTORNEY — Extent of it.] As to the extent of an attor- ney's lien, see Richardson v. Brooklyn Gity & Newtown R. R. Co., 24 How. Pr. 322 [Gen. T. 1872]. (See Code of Civil Procedure, § 66.) What it does not embrace.] An attorney's lien does not include a ref- eree's fees, nor does it extend to all the real and personal property of the client involved in the suit. (Hinman v. Devlin, 40 App. Div. 234.) General indebtedness.] It does not cover any general indebtedness of the client to his, attorney. (West v. Bacon, 13 App. Div. 371.) Lien where a judgment is for costs only.] Section 66 of the Code of Civil Procedure was intended to enlarge the lien of an attorney, not to limit it, by making the lien attach from the commencement of the action; and where the judgment is for costs only, the attorney is regarded in equity as the owner of the judgment until he is paid for his services, (ilatter of Lazelle, 16 Misc. 515 [1896].) Continuing an action by an attorney for the costs.] An attorney, under the Buffalo charter, may not continue an action in the Municipal Court of Buffalo for the wages of an unskilled laborer after a settlement by his client, with a view to recovering the statutory costs. (Drago v. Smith, 92 Hun, 536 [1895].) Where compensation is to be paid from proceeds of judgment.] When an attorney renders services in an action under an agreement that he shall receive his compensation out of the proceeds thereof, he has an equitable lien upon or ownership, as equitable assignee, in such proceeds. (Harwood v. La Grange, 137 N. Y. 538 [1892].) To what it attaches.] An attorney's lien for compensation attaches to the judgment in the hands of an assignee for value without actual notice; a fortiori if there be such notice. (Guliano v. AMiitenack, 9 Iilisc. Rep. 562 [N". Y. Com. PI. 1894].) The lien attaches to the judgment recovered. (Bevins T. Alvro, 86 Hun, 590 [1895].) To what papers the lien attaches.] Attorneys employed by contractors to procure a clear title to a right of way for a railroad have a lien on the muniments of title of the railroad. (Hilton Bridge Construction Co. v. X. Y. Central Railroad, 84 Hun, 225 [1895]; S. C, 145 N. Y. 390.) Upon what property.] An attorney has a lien Tipon all deeds and papers in his hands belonging to his client, and until he is paid the court will not order them to be given up. (The Bowling Green Savings Bank v. Todd, 64 Barb. 146 [Gen. T. 1872]. See Code of Civil Procedure, § 66.) E.ule 10] Genebal Kules of Peactice. 85 Lien on property in a receiver's hand.] When attorney's lien attaches to property in a receiver's hands. (Whitehead v. O'Sullivan, 12 Misc. 577 [1895].) Attorney's lien superior to a judgment-creditor's.] The lien of an attor- ney for his costs and compensation on a judgment prevails over the lien of a judgment-creditor in supplementary proceedings instituted against the party who recovered the judgment, and notice of the lien to such judgment-creditor is not essential to make it effective. (Dienst v. McCaffrey, 66 N. Y. St. Repr. 200 [1895].) Satisfaction set aside.] A satisfaction piece of a judgment set aside to the extent of the costs where a settlement of the action was made without the knowledge of the attorney. (Roberta v. Union Elevated Railroad Co., 84 Hun, 437 [1895].) The judgment cannot be impeached for lack of authority.] In a pro- ceeding to enforce an attorney's lien on a judgment, neither the judgment- debtor nor an assignee of the judgment can impeach it for lack of authority to prosecute the action in which the judgment issued. (Guliano v. Whitenack, 9 Misc. Rep. 562 [X. Y. Com. PI. 1894].) Measured by taxable costs.] The lien given to an attorney by sec- tion 66 of the Code of Civil Procedure is presumptively measured by the amount of the taxable costs, and where more is claimed, such claim must be protected by notice. Such a lien cannot attach to a cause of action which, in its nature, is not assignable. (Keane v. Keane, 86 Hun, 159 [1895].) Taxable costs the extent of the attorney's recovery.] Plaintiff's at- torney caai recover only to the extent of the taxable costs, when in such an action he notifies the defendant that under a contract with his client he is entitled to a share in the recovery. (Oliwell v. Verdenhalven, 17 Civ. Proc. R. 362 [N". Y. City Ct. 1889].) Entitled to taxable costs as of right — disbursements.] An attorney is entitled to the taxable costs for his services as a matter of right, but not to disbursements, unless he proves that they were actually made. (Kult v. Nelson, 25 Misc. 238 [1898].) The lien extends to all provisional remedies.] A plaintiff, by executing a release, cannot discharge a defendant who is imprisoned by the direction of an order when plaintiff's attorney opposes such discharge, as the attorney's lien extends to all provisional remedies which have been granted. (Crouch v. Hoyt, 30 N. Y. Supp. 406 [Supm. Ct. 1894].) ——Not limited to services in the particular action.] An attorney has a lien upon a fund, to be paid his client on the settlement of an action by the parties thereto, to the extent of the general balance due him, and is not con- fined to the value of his services in the particular action. (Canary v. Russell, 10 Misc. Rep. 597 [1895].) No lien for general services on proceeds of a judgment paid to the receiver of his client.] An attorney has no lien for his general services upon the proceeds of a judgment which never came into his hands, but were paid to the receiver of his client; but only for services rendered in the action in 8'6 Courts of Record. [Rule 10 "whi«h the judgment was recovered. (Anderson v. B. de Braekeleer, 25 Misc. 345 [1898].) A iien does not apply to a special proceeding.] (Matter of Lexington Ave., No. 1, 30 App. Div. 602 [1898].) Does not embrace alimony.] In an action for separation, an attorney is not entitled to fees from alimony awarded his client, and has no lien thereon. (Weill v. Weill, 18 Civ. Proc. R. 241 [Sup. Ct. Sp. T. 1890].) Lien restricted in case of substitution.] In a proceeding for the substi- tution of an attorney in two pending suits, held, that the attorney's lien should be restricted to the papers in his hands in the two eases. (Hinman v. Devlin, 40 App. Div. 234 [1899].) The attorney of record.] The attorney of record alone is entitled to a lien on a judgment. (Kennedy v. Carrick, 18 Misc. 38 [1896].) Counsel has not a lien.] A counsel cannot retain papers until his fees are paid. (Brown v. Mayor, 9 Hun, 587 [1877]; Estate of Michael Sichling, 2 Law Bulletin, 98 [1880].) An attorney cannot claim as assignee of a cause of action for per- sonal injury.] An attorney cannot become the assignee of his client's cause of action for personal injuries, and prosecute an action in his own behalf, after the settlement of the controversy between the parties, the plaintiff not having bad any right to assign his cause of action. (Oliwell v. Verdenhalven, 17 Civ. Proc. R. 362 [N. Y. City Ct. 1889].) Lien not assignable.] When an attorney transfers papers of a client to a third party, on making an assignment to such party of his claim against the client for services, the third party cannot retain possession of the papers from the client as security for the assigned claim, but must deliver them up, and be remitted to an action for any claim he may have against the client. {Sullivan v. Mayor, etc., of New York, 68 Hun, 544 [1893].) Enforced against his client's assignee.] In the case of the assignment ■of a judgment rendered in favor of his client, an attorney may enforce his claim for compensation from the proceeds of an execution in the possession of the sheriff, even if notice of such claim has not been given the assignee, and the assertion by said assignee that the judgment was recovered upon a false demand does not affect the claim of the attorney. (Marvin v. Marvin, 46 St. Rep. 259 [N. Y. City Ct. 1892].) — Assignment of judgment — lien no answer to summary proceedings ] "Where a transfer of the claim in suit was proposed and accepted during the pendency of the action, but by advice of the attorney no formal assignment was made until after judgment, the attorney will be held to have prosecuted the action for the benefit of the assignee, and the latter may maintain summary proceedings against the attorney to compel the payment of the moneys col- lected by him upon the judgment. The assertion of a lien by the attorney is not an answer to summary pro- ceedings, but it is discretionary with the court to proceed in the matter. In such a case the court may order a reference to ascertain the amount of the attorney's lien. (Gillespie v. Mulholland, 12 Misc. Rep. 40 [N. Y. Com. PI. G. T. 1895].) Hule 10] General Eules of Practice. 87 An attorney's lien authorizes entry of judgment after his client's death.] The defendant in an action died about 10 a. m. the same day that the General Term of this court handed down and filed a decision affirming an order denying a motion to vacate the judgment rendered in the action on appeal from the order of affirmance. Held, that it appearing that defendant's attorney had a lien on the judg- ment for costs, he was entitled as an equitaljle assignee to enter the judg- ment and issue execution thereon. (Peetsch v. Quinn, 6 Misc. Rep. 52 [N. Y. City Ct. 1893].) Proof of the extent of the attorney's lien.] Wliere a client, after issue has been joined, settles the action, his attorney, upon prosecuting the action for the protection of his lien to recover a certain portion of the amount received by the client upon the settlement, is not entitled to judgment unless he is able to establish the cause of action in issue under the pleadings. The statement by the attorney that under an agreement with his client he was to receive that amount for compensation, does not in itself authorize the court to direct judgment in his favor. (Casucci v. Allegany and Kinzua R. R. Co., 29 Abb. N. C. 252 [Supm. Ct. 1892].) How determined.] The court has power to determine the amount of the attorney's lien by reference. (Gillespie v. Mulholland, 12 Misc. Rep. 43 [N. Y. Com. Pleas, G. T. 1895].) ^Attorney may follow proceeds into hands of third parties.] The pro- visions of the Code of Civil Procedure ( § 66 ) create a loan in favor of the attorney on liis client's cause of action, and enable him to follow the proceeds into the hands of third parties, without regard to any settlement before or after judgment. (Peri v. N. Y. Central R. R. Co., 152 N. Y. 521 [1897].) When a lien of attorney cannot be defeated by a setoff between the parties to the action.] Where an attorney has a lien on an undertaking given on appeal from an order vacating an attachment, for compensation for his services in vacating the attachment, held that this lien could not be defeated by a setoff between the parties to the action. (Bamberger v. Oshinsky, 21 Misc. Rep. 716 [1897].) Does not prevent the settlement of the action by the parties.] The provision of the Code of Civil Procedure (§ 66) giving to an attorney, who appears for a party in an action, " a lien upon his client's cause of action, or counterclaim, which attaches to a * * * judgment in his client's favor," does not prevent the parties to the action from settling the same, or the client from releasing a judgment in his favor. While the lien cannot be affected by a release of the judgment, and while, it seems, if a release has the effect to defraud the attorney, the court may and should set it aside in order to protect the lien, the judgment will not be kept alive after the release unless necessary for the protection of the attorney. Until the lien is asserted in some way, the judgment remains the property of the client. In order, therefore, to warrant the court in disregarding a settlement and release made between the parties in an action, it must be shown that to give 88 CoTJETs OF Record. [Rule 10 full effect to them will operate as a fraud upon the attorney, or to his preju- dice by depriving him of his costs, or turning him over to an irresponsible client. (Poole v. Belcha, 131 N. Y. 200 [1892].) A settlement with a destitute client set aside.] A settlement with a destitute plaintiff after judgment, without notice to her attorney will be set aside at his instance, to enable him to enforce his lien, although he has not given notice of such lien. (Vrooman v. Pickering, 25 Misc. 277 [1898].) Entry of judgment after settlement.] A judgment entered by plain- tiff's attorney, after a settlement by the parties, though in ignorance thereof, is irregular, and will be set aside in the absence of proof that such settle- ment was •collusive, or that the plaintiff was irresponsible. (Publishers' Print- ing Co. v. Gillin Printing Co., 16 Misc. 558 [1896].) The lien does not prevent a settlement.] The existence of an attorney's lien does not affect the validity of a settlement by the parties as between themselves. (Williams v. Wilson, 18 Misc. 42 [1896].) The lien is superior to a right to set off a judgment.] Semhle, that the attorney for a defendant in whose favor a judgment for costs has been entered upon the dismissal of the complaint, acquires a lien thereon for his compensation, which is superior to the right of the plaintiff to set off a prior judgment in his favor, whether he seeks to enforce such right upon a motion or by an action. (Ennis v. Curry, 22 Hun, 584 [1880]. See, however, Sanders V. Gillet, 8 Daly, 183 [1878].) The settlement of an action to defeat an attorney's lien is ineffectual.] A settlement by the client of a pending action, in order to defeat the lien of his attorney, for the agreed compensation of one-third of the recovery, 's ineffectual, and the attorney will be allowed to continue and prosecute the action to establish his lien, (Astrand v. Brooklyn Heights R. R. Co., 24 Misc. 92 [1898].) Defendant may settle action, despite attorney's lien.] The defendant may settle the litigation without regard to his attorney, unless he has inter- posed a counterclaim or there is fraud and collusion. (Longyear v. Carter, 85 Hun, 513 [1895].) Protection against compromise — what constitutes a good cause of action.] An attorney commenced an action in consideration of an agreement under which he was to receive a percentage of the recovery, and the client and the defendant settled the action between themselves. The attorney set forth this agreement in the complaint in an action against said client and defendant, and that a collusive settlement had been made between them, in order to defeat the plaintiff of his just compensation. Held, that such com- plaint alleged a good cause of action, and should not have been dismissed. (Murphy v. Davis, 19 App. Div. 615 [1897].) Satisfaction of a judgment without notice to the attorney, where the creditor is insolvent.] A satisfaction of a judgment given by the judgment- creditor, without the knowledge of his attorney, will be set aside on motion of the attorney where the creditor is insolvent. (Mitchell v. Piqua Club Assn., 15 Misc. 366 [1895].) Control of attorney by court.] If an attorney seeks to take unfair Rule 10] General Rules of Peactice. 89 advantage of the desire of parties to settle, he will be confined in his lien to hia taxable costs, and such additional amount as he may be able to establish by agreement, express or implied. (Peri v. N. Y. Central R. R. Co., 152 N. Y. 521 [1897].) Excessive charges — retaining money for.] An attorney should not be allowed to retain moneys of his client for what seem to be excessive charges, where the only evidence to support them is his opinion that they were fair, but he should be required to produce legal experts upon the question ot the value and necessity of the services. (Matter of Raby, 25 Misc. 240 [1898].) Lien restored when an attorney is compelled to repay an allowance.] Where an attorney has consented to a substitution and thus lost his lien, relying on his right to an extra allowance granted to him, an order compelling a return of a portion of such allowance should be conditioned on terms which, in effect, will restore his lien on his client's distributive share for his services. (Cooper V. Cooper, 27 Misc. 595 [1899].) Lien of attorney not affected by a conveyance to himself.] An at- torney for one of the parties to an action to set aside a conveyance, after judgment directing the grantee to convey to a trustee for that party, received a conveyance of the property to himself, and at the same time executed a declaration of trust " for the purposes expressed in said judgment, and in no other way." Held, that this did not aflfect his lien on the premises for services he had rendered in the action. (West v. Bacon, 13 App. Div. 371 [1897].) Continues though the claim is barred by Statute of Limitations.] An attorney's lien on moneys of his client in his possession, for the amount of a general balance due him for professional services, continues to exist after and notwithstanding his remedy by action, for the debt has become barred by the Statute of Limitations ; and the attorney has a right to retain such money until his account is adjusted and to have it set off a,nd applied upon his account, in an action brought against him by the client to recover the money in his hands. (Maxwell v. Cottle, 72 Hun, 529 [1893].) Municipal Court of Buffalo — no lien in.] Section 66 of the Code of Civil Procedure, giving an attorney a lien on his client's cause of action, does not apply to the Municipal Court of Buffalo. (Drago v. Smith, 92 Hun, 536 [1895].) Where there is no counterclaim in the answer, the lien of the defend- ant's attorney cannot attach.] Where the defense pleaded does not purport to be a counterclaim, and the answer does not set up facts showing a counter- claim, there is nothing to which the lien of defendant's attorney may attach, and he cannot have the action, which he alleges to have been settled in defraud of his rights, continued in order to enable him to enforce them. (White V. Sumner, 16 App. Div. 70 [1897].) Notice by attorney of his interest in the recovery — necessary.] An attorney must have given notice of the assignment of a part of the recovery to him, in order to justify his moving to set aside a settlement entered into between the parties. (Jenkins v. Adams, 22 Hun, 600 [1880].) Notice to the defendant's attorney is not notice to the defendant..! Notice to the defendant's attorney of the existence of the lien of the plain 90 CkjUETs OF Eecoed. [Rule 10 tiflf's attorney is not notice to the defendant, and will not protect the plain- tiff's attorney from a settlement made by the defendant. (Wright v. Wright, 7 Daly, 62 [1877]; Peri v. N. Y. Central R. R. Co., 152 N. Y. 521 [1897].) Notice is not necessary.] An attorney has a lien upon his client's cause of action and upon the judgment recovered therein, to the extent of the com- pensation agreed upon, and no notice thereof is requisite. (Lewis v. Day, 10 W. Dig. 49 [Sp. T. 1866, City Ct. of Brooklyn, 1880].) When the attorney is regarded as an equitable assignee of a judgment.] Where a firm of attorneys has rendered services and paid out money in an action (which resulted in a judgment in favor of their client), and in other actions relating to the subject-matter of the first action (such services and disbursements equaling in value the amount of the judgment), such attorneys may be regarded as the equitable assignees of the judgment, and they have the right to satisfy their lien by process of execution. (Van Camp v. Searle, 79 Hun, 136 [1894]. See, also, Peetch v. Quinn, 9 Misc. Rep. 52 [N. Y. City Ct. 1893].) Settlement by client — effect of.] Where defendant settles after cause is on calendar court may impose costs to the attorney. (Nat. Ex. Co. v. Crane, 167 N. Y. 500.) Attorneys' lien may be established although they may not be entitled to vacate a satisfaction of a judgment.] (Corbit v. Watson, 88 App. Div. 467. See, also, Serwer v. Sarasohn, 91 App. Div. 538.) ENFORCEMENT OF LIEN — A special proceeding — appealable.] An ap- plication by an attorney of record of the plaintiff to vacate a satisfaction of judgment, executed by his client to enforce the judgment by execution to the extent of the attorney's lien thereon, based upon facts distinct from those passed upon at the trial, is a special proceeding and not a motion in^ the action. Hence, an order of the Appellate Division, confirming an order grant- ing the application, is appealable to the Court of Appeals, as an order finally determining a special proceeding. (Peri v. N. Y. Central R. R. Co., 152 N. Y. 521 [1897].) Collusive satisfaction of judgment, when set aside.] A collusive satis- faction of judgment will be set aside in favor of the attorney's lien, and, semhle, even though the satisfaction be without intent to defraud the attorney. On a motion to set aside such satisfaction, the court, upon evidence, may determine the extent of the attorney's lien and set aside the satisfaction to that amount. (/6.) Settlement of an action in fraud of attorney's rights, how vacated.] It can only be vacated on his application made in his own name. (Murray V. Jibson, 22 Hun, 386 [1880].) How enforced.] Such lien may be enforced by motion in the action itself. (Canary v. Russell, 10 Misc. Rep. 597 [Sup. Ct. Sp. T. 1894].) Compensation and lien of attorney.] Whether agreement that attorney shall have fifty per cent, of recovery for prosecuting action depends upon the circumstances of each case. (Morehouse v. Brooklyn Heights R. Co., 185 N. Y. 520.) An attorney's lien cannot be affected by settlement between client and Eule 11] General Eules of Pkactice. 91 defendant without the attorney's knowledge and consent. (Oishei v. Penn. Ey. Co., 117 App. Div. 110. See, also. Matter of Speranza, 186 N. Y. 280; Oishei v. Met. St. Ry. Co., 110 App. Div. 709; Matter of Smith, 111 id. 23; Ransom v. Cutting, 112 id. 150; Agricultural Ins. Co. v. Smith, 112 id. 840; Sullivan v. McCann, 124 id. 126; Matter of Brackett, 114 id. 257; Van Der Beek v. Thomason, 50 Misc. 524; Horn v. Horn, 100 N. Y. Supp. 790; Horn V. Horn, 115 App. Div. 292; Baxter v. Conner, 119 id. 450; Heyward v. Maynard, 119 id. 66; Crossman v. Smith, 116 id. 791; Rose v. Whiteman, 52 Miae. 210; Kneeland v. Pennell, 54 id. 43; Matter of Williams, 187 N. Y. 286 ; Matter of Goodale, 58 Misc. 182 ; Haire v. Hughes, 127 App. Div. 530 ; Knickerbocker Invest. Co. v. Voorhees, 121 id. 690; Leosk v. Hoagland, 64 Misc. 156; Bloch v. Bloch, 131 App. Div. 859; Matter of Bergstrom & Co., 131 id. 791; Matter of Mahar, 131 id. 420; Webb v. Parker, 130 id. 92.) As to rights of attorney in respect of lien after he has become insane, see Matter of Stanton, 53 Misc. 515. Lien not affected by removal of case to United States courts. (Oishei v. Penn. Ry. Co., Ill App. Div. 110.) Attorney may have a lien upon his client's cause of action even though the client be an executor or administrator. (Matter of Ross, 123 App. Div. 74.) Attorney issuing execution to enforce his lien on a judgment should restrict the execution to the amount of the lien. (Bloch v. Bloch, 136 App. Div. 770.) Attorney who had successfully resisted claim of next of kin upon prop- erty of his client, an administratrix, held to have no lien on the property. (Matter of Robinson, 125 App. Div. 424.) When attorney can be compelled to surrender property in his hands on which he claims a lien. (Matter of Edward Ney Co., 114 App. Div. 467; People ex rel. White v. Feenaughty, 51 Misc. 468.) In action by client to recover moneys collected by an attorney, burden on defendant to prove he was justified in having made settlement for less sura than agreed upon between himself and client. (Harkavy v. Zisman, 96 N. Y. Supp. 214.) RULE 11. Agreements between Parties or Attorneys to be in an Order or in Writing. No private agreement or consent between the parties or their attorneys, in respect to the proceedings in a cause, shall be bind- ing, unless the same shall have been reduced to the form of an order by consent, and entered, or unless the evidence thereof shall be in writing, subscribed by the party against whom the same shall be alleged, or by his attorney or counsel. Rule 13 of 1858. Rule 16 of 1871. Rule 16 of 1874. Rule 11 of 1877. Rule 11 of 1880. Rule 11 of 1884. Rule U of 1888. Rule 11 of 1896. VERBAL STIPULATION — In court.] Verbal stipulations made by counsel in open court, upon the argiiment of a cause, will be enforced by the court. 92 CouETs OF Eecoed. [Rule 11 especially if acted on before revocation, or entered in the minutes. [Jewett v. The Albany City Bank [1840], Clarke's Chan. [Moak ed.] 247; and see caaes collected in note, p. 254; Banks v. The American Tract Society, 4 Sandf. Oh. 438 [1847]; Staples v. Parker, 41 Barb. 648 [Gen. T. 1864].) Before referee.] So also agreements, relating to the proceedings on a, reference, made in the presence of the referee. (Ballou v. Parsons, 55 N. Y. 673 [1874]; Corning v. Cooper, 7 Paige, 587 [1839]; Livingston v. Gidney, 25 How. Pr. 1 [Sp. T. 1863].) — — Out of court — void.] Agreements made out of court and not in v?rit- ing, as required by this rule, cannot be enforced. (Broome v. Wellington, 1 Sandf. .664 [1847]; Leese v. Schermerhorn, 3 How. Pr. 63 [Sp. T. 1847]; Bradford v. Downs, 25 App. Div. 581 [1898].) Agreement to settle.] An agreement in settlement of an action need not be in writing. (Smith v. Bach, 82 App. Div. 608 [1903].) Agreement to waive irregularities.] A stipulation to waive irregu- larities in the issuing of a commission must be in writing. (Mason & Hamlin Organ Co. v. Pugsley, 19 Hun, 282 [1879].) To postpone a trial or notify counsel for a criminal.] (People v. Hag- gerty, 5 Daly, 535 [1875].) As to matters collateral to the action.] To what cases the rule applies. (First Nat. Bank v. Tamajo, 77 N. Y. 476 [1879].) As to disbursements.] (See Rust v. Hauselt, 8 Abb. N. C. 148 [1880].) Effectual by estoppel. — When party has been misled.] The rule has no application where a party has been led to rely on the stipulation to his disad- vantage. (Mutual Life Ins. Co. v. O'Donnell, 146 N. Y. 275 [1895]; Mont- gomery V. Ellis, 6 How. Pr. 326 [Sp. T. 1851]; People v. Stephens, 52 N. Y. 306 [1873] ; Wager v. Stickles, 3 Paige, 407 [1832] ; Stinnard v. N. Y. Fire Ins. Co., 1 How. Pr. 169 [Sp. T. 1845]; Griswold v. Lawrence, 1 Johns. 507 [1806]. To the contrarjr, Connell v. Stalker, 21 Misc. 609 [1897]; Patterson v. Knapp, 83 Hun, 492 [1895].) AVOIDANCE OF STIPULATION — Party seeking to avoid a stipulation on the ground of fraud.] Wliere a party or attorney, in disregard of a stipu- lation entered into by him in the case — e. g., to change the venue — proceeds in the cause on the alleged ground that the stipulation was obtained by fraud and has no binding force, he assumes the peril, in case the question of fraud is decided against him, of having all the proceedings set aside as irregular, with costs. (Fitch v. Hall, 18 How. Pr. 314 [Sp. T. 1859].) Stipulations — when relieved against by the court.] The court, in the exercise of its discretion, may relieve litigants from stipulations signed by counsel when either unadvisedly or inadvertently signed, or when, under the circumstances revealed, the stipulations should not be allowed to stand. (Mayor, etc., of N. Y. v. Union Ferry Co., 9 N. Y. W. Dig. 558 [G«n. T. April, 1880].) When the court may set it aside.] Where parties can be restored to the same position in which they would have been if no stipulation had been made, the court may, in its discretion, set aside the stipulation. (Barry v. Mut. Life Ins. Co., 53 N. Y. 536 [1873]; Seaver v. Moore, 1 Hun, 305 [1874].) Eule 11] General Eules of Practice. 93 A party stipulating that certain allegations of a pleading are true can- not thereafter claim the contrary.] (DriscoU v. Brooklyn U. El. R. Co., 95 App. Div. 146.) EFFICIENCY OF — Enforcement of stipulation that a decision shaU be final.] The Court of Appeals has the power to enforce a mutual stipulation made between the parties in the court from which the appeal is taken, by which they agreed that the decision in such case should be final, and that no appeal should be taken. (Townsend v. Stone Company, 15 N. Y. 587 [1857].) Stipulation as a cause of action.] An action brought upon a stipulation is brought upon a new contract, and when supported by a new consideration it is enforcible. (Davidson v. Davidson, 29 App. Div. 629 [1898].) Judgment modified under a stipulation — effect of an appeal and reversal of the judgment.] Power of the court on appeal to modify a judg- ment upon a stipulation of the parties, and to afBrm it as modified. Effect upon such stipulation of an appeal to the Court of Appeals by the unsuccess- ful party, and his obtaining there a general judgment of reversal and a new trial. (Crim v. Starkweather, 32 Hun, 350 [1884].) Use of stipulation upon second trial.] A stipulation by an elevated railroad company, whereby it waives certain objections, is not affected by a reversal of the original judgment, and it will control the court upon a second trial. (Hine v. N. Y. Elevated R. R. Co., 149 N. Y. 154 [1896]. See, also, Clason V. Baldwin, 152 id. 204 [1897]; Converse v. Sickles, 16 App. Div. 49 [1897].) And upon appeal from the judgment rendered thereon. (Ryan v. Mayor, 154 N. Y. 328 [1897].) Power of the Attorney-General to waive right to appeal.] The Attorney-General has power to waive his right to appeal or to discontinue an action brought by him under the provisions of the act authorizing him to institute suits for the purpose of annulling certain contracts for canal repairs. (People V. Stephens, 52 N. Y. 306 [1873].) Stipulation not to appeal.] A stipulation not to appeal is a proceeding in the cause, and a waiver in consideration thereof of the right to move to dismiss an appeal is a waiver of a substantial right. (People ex rel. Burby v. Common Council of Auburn, 85 Hun, 601 [1895].) Violation of stipulation — effect of.] Where a stipulation was made npon the entry of a judgment, that execution should not issue until the amount of a certain claim in favor of the debtor against the plaintiff had been adjusted, and in violation thereof a transcript of the judgment was filed and execution was issued, and an order obtained to examine the judgment debtor, held, that the execution should be set aside and the order vacated. (Eames v. Bagg, 8 App. Div 541 [1896].) Abandonment of stipulation.] Where a stipulation contemplates a speedy trial, which the party evades, his opponent may regard it as aban- doned. (Crowell V. Crowell, 91 Hun, 638 [1895].) 94r CouETS OF Record. [Rule 13 aULE 12. Consents to Payment of Money Out of Court to be Acknowledged. All consents providing for the payment of money out of court shall be acknowledged before an officer authorized to take the ac- knowledgment of deeds, accompanied with proof of the identity of the applicant from some person other than the applicant, before any order is granted thereon. Rule 17 of 1871. Rule 17 of 1874, amended. Rule 12 of 1877. Rule 12 of 1880, amended. Rule 12 of 1884. Rule 12 of 1888. Rule 12 of 1896. CODE OF CIVIL PROCEDURE. § 614. Money paid into court on injunction staying proceedings after ver- dict, report or decision — paid to the party stayed on his giving an undertaliing. § 744a et seq. Regulations concerning the payment of money into court and the disposition thereof. § 751. Money paid into court to be paid out only on a certified order of court, countersigned by the presiding judge. § 1563. Partition sale — when proceeds paid into court. § 1&33. Mortgage foreclosure by action — disposition of surplus. § 2361. Sale of real estate of infant, etc. — disposition of proceeds. § 2404. Mortgage foreclosure under statute — disposition of surplus. § 2786. Surrogate's sale, mortgage, etc. — proceeds to be paid into court. See Rule 69; Ch. 750 of 1904. EUIE 13. Arrest — Injunction — Attachment — Recital of the Grounds Thereof in the Order. Every order of arrest, as well as every injunction or attachment, shall briefly state the grounds on which it is granted. Rule 13 of 1877. Rule 13 of 1880. Rule 13 of 1884. Rule 13 of 1888. Rule 13 of 1896. CODE OF CIVIL PROCEDURE. § 561. Contents of an order of arrest. § 610. The injunction order — ^must briefly recite the grounds therefor. § 641. The warrant must briefly recite the ground of the attachment. STATEMENT OF GROUNDS — Failure of order to state the grounds Of injunction — an irregularity.] When the order refers to the complaint and an affidavit on which an injunction is granted, copies of which containing the Eule 14] Geneeal Rules of Peactice. 9'5 grounds on which the order was made are served on the defendant, the lack of the statement of the grounds in the order is a mere irregularity. (Church v. Haeger, 66 St. Eep. 681 [1895].) Failure to correctly state the grounds of attachment in the warrant — how amended.] A failure to state in the warrant the ground for the attach- ment does not necessarily make it void, and if the affidavit on which it is issued is sufficient, a defect in the warrant, by reason of the recital in the disjunctive, may he amended within CJode Civil Procedure, section 723, to make it correspond to the affidavit. (Stone v. Pratt, 90 Hun, 39 [1896].) What is a sufficient statement of the "grounds of the attachment."] A recital in a warrant that defendant " has assigned, disposed of or secreted hij property " refers to one class only of the grounds set forth in Code Civil Pro- cedure, section 636, and aa a sufficient compliance with section 641. (Sturz v. Fischer, 15 Misc. 410 [1896].) Use in the alternative of eqmvalent terms in defining an offense is not a ground for vacating an order of arrest.] An order of arrest which, in stating the grounds thereof as required by Rule 13, states that the ground " is the conversion of money embezzled or fraudulently misapplied by said defendant in the course of his employment as attorney for the aforesaid James T. Quail, deceased," is not fatally defective because framed in the alternative, as the court, in using the words " embezzled or fraudulently misapplied," merely defined, by the use of equivalent terms, the offense which justified the issuing of the order. (Quail v. Nelson, 39 App. Div. 18 [1809]. See, also, Rogers v. IngersoU, 103 App. Div. 490.) Warrant of attachment.] Reciting in the alternative is stating neither fact, and a warrant so stating is fatally defective. (Cronin v. Crooke, 143 N. Y. 352; Brandley v. Am. Butter Co., 60 Misc. 547.) Improper attachment.] An attachment based on statements to a mer- cantile agency, without affidavit of any officer or agent of the same, vacated. (Philip Becker & Co. v. Bevins, 102 N. Y. Supp. 144.) When court has power to amend warrant of attachment, 59 App. Div. 128 (King V. King). See notes imder Rule 3. RTTIE 14. Discovery of Books, Papers and Documents, When Compelled. 'Application may be made in the manner provided by law to compel the production and discovery or inspection vrith copy of books, papers and documents relating to the merits of any civil action pending in court or of any defense of such action, in the following cases: (1) By the plaintiff, to compel the discovery of books, papers or documents in the possession, or under the control, of the defendant, which may be necessary to enable the plaintiff to frame his com- plaint or to answer any pleading of the defendant. 96 Courts of Eecoed. [Rule 14 (2) By the defendant, to compel the like discovery of books, papers or documents in the possession, or under the control, of the plaintiff, which may be necessary to enable the defendant to answer any pleading of the plaintiff. (3)' Either party may be compelled to make any discovery of book, document, record, article or property in his possession or under his control or in the possession of his agent or attorney, upon its appearing to the satisfaction of the court that such book, docu- ment, record, article or property is material to the decision of the action or special proceeding, or some motion or application therein, or is competent evidence in the case, or an inspection thereof is necessary to enable a party to prepare for trial. Eule 14 of 1858. Rule 18 of 1871. Rule of 1874, amended. Rule 14 of 1877. Rule 14 of 1880. Rule 14 of 1884. Rule 14 of 1888, amended. Rule 14 of 1896. CODE OF CIVIL PROCEDURE. § 803. A court of record may direct discovery or an inspection and copy of books, etc. § 804. The General Rules of Practice to prescribe the eases in which it may be had and the modes of procedure. § 806. Petition for discovery and order thereon directing the party to allow it or show cause. § 806. Order granting discovery, when and by whom it may be vacated. § 807. Proceedings upon the return of the order to show cause — referee may be appointed to superintend the discovery. § 808. Penalty for disobedience of order. § 809. Effect as to boolcs, etc., the same as if they were produced upon notice. § 866. Records not to be removed by virtue of suijjosna duces tecum, when. § 867. Production of books under order of subpcena duces tecum which must be served five days before, — relief allowable. § 868. Production of books and papers of a corporation compelled in the same manner as if in the hands of a natural person. § 869. When personal attendance not required by suhpoena duces tecum — public office and officer of corporation. § 873. Physical examination of the plaintiff in an action for personal in- juries. § 929. Books of a foreign corporation, when evidence. § 930. When a copy thereof is evidence. § 931. How such copy must be verified. § 1878. Discovery in judgment-creditor's action — how compelled. Kule 14] General Eules of Peactice. 97 § 1914. Subsidiary action for discovery abolished. § 2538. Provisions as to discovery, applicable to Surrogate's Court. POWER OF COURT — Code of Civil Procedure, §§ 803-808, is a virtual re-enactment of the Revised Statutes.] An application for an inspection and copy of books and papers must now be had under sections 803-808 of the Code of Civil Procedure, which are a virtual re-enactment of the provisions of the Revised Statutes upon this subject. (Cutter v. Pool, 54 How. Pr. 311 [N. Y. Com. PI. Sp. T. 1877].) To annex document to commission to examine witness.] The court has no power in an action upon a draft to order it to be annexed to a commission issued to take the examination of witnesses residing out of the State. (Butler V. Lee, 32 Barb. 75 [Gen. T. I860]; S. C, 19 How. Pr. 383.) A discovery can only be had under section 803, etc., of the Code.] The only mode by which a discovery of books and papers can be obtain?d before trial is under sections 803, 804, 805, etc. (Martin v. Spofiford, 3 Abb. N. C. 12.5 [Chamb. 1877].) The examination of parties or production of their books cannot be com- pelled under the provisions of the Revised Statutes as to perpetuating testi- mony.] The examination of parties as witnesses, or the production of their books, cannot be compelled under the provisions of the Revised Statutes to perpetuate testimony. (Keeler v. Dusenbury, 1 Duer, 600 [Sp. T. 1853].) The rules of the Supreme Court do not unite the remedies for discovery under the Code and the Revised Statutes.] The rules of the Supreme Court (14-17) regulate the proceedings for the discovery of books, papers and docu- ments, both under the Revised Statutes and under the Code, but do not and cannot unite or confound the two remedies. (Pindar v. Seaman, 33 Barb. 140 [Gen. T. I860].) An examination of the adverse party and a discovery of his books can- not both be had in one proceeding.] It seems, that an examination of the adverse party and a discovery and inspection of his books and papers cannot be had in one proceeding, and the provisions of section 388 of the Code of Procedure relating to the latter object, cannot be invoked to sustain an order for the former object. (Havemeyer v. Ingersoll, 12 Abb. [N. S.] 301 [Sp. T. 1871].) Discovery of books and papers is a proceeding independent of the right to their production on the trial, or by a party examined before the trial.] The right to inspection of books and papers with a view to the discovery of evidence is distinctly recognized by statute, and is not to be confounded with the production of them as evidence upon the trial, or on the examination of a party as a witness before trial. (Lefferts v. Brampton, 24 How. Pr. 257 [N. Y. Com. P. Gen. T. 1862].) Order for inspection granted when contract provides for it.] Where contract provided that plaintiff was to have a certain share of profits, which were to be adjusted every three months, in an action to recover for these profits, it was held that plaintiff was entitled to an order allowing him to 7 98 CkiTJETS OF Eecoed. [Rule 14 inspect the books, although he had not served hia complaint. (Ballenburg v. Wahn, 103 App. Div. 34.) Action in equity will not lie.] Action in equity will not lie for the sole purpose of procuring discovery and inspection of books. Code remedy was intended to be exclusive. Eice v. Peters, oS Misc. 381. Of deed.] In an action to set aside a deed on the ground of fraud, plaintiff may be permitted inspection of the deed in question, although s,ummons only has been served. Peck v. Peck, .57 Misc. 95. NOT A RIGHT — Given only in extreme cases.] It is not a matter of right to inspect books and papers, and the privilege is not given except in ex- treme cases, where the refusal may involve the loss of a claim or defense. (Harbison v. Van Volkenburgh, 5 Hun, 454 [Gen. T. 1875].) Examination of books denied where it would be a hardship to the de- fendant.] There is no absolute right upon the part of a plaintiff to have an examination of the defendant's books, in order that he may frame a com- plaint with more particularity than he would be able to do without such in- spection. When it is apparent that such an inspection would be a great hardship if it should be finally determined that the plaintiff had no right of recovery, an or- der of that description should not be granted unless the same is absolutely necessary to enable the plaintiff to frame his complaint. (Ward v. New York life Ins. Co., 7S Hun, 363 [1894].) The manner is discretionary with court.] The court has power to order a contract to be deposited with the clerk for inspection or to leave the party to an examination before trial or a subposna duces tecum. (Stillwell v. Priest, 85 N. Y. C49 [1881].) ^Where inspection is in the discretion of the Special Term.] (O'Gorman V. O'Gorman, 92 Hun, 605 [1895].) SURROGATE — Powers of.] Equitable powers of a surrogate to compel the books and papers of an estate to be opened to the inspection of a litigant. (Matter of Stokes, 28 Hun, 564 [1883].) May direct issuance of commission to examine party before trial. (Matter of Plumb, 135 N. Y. 661.) PROCEDURE — Proper procedure to obtain inspection.] The mode of making applications for discovery, etc., under the Revised Statutes and the Code, stated. (Hoyt v. Exeh. Bank, 1 Duer, 652 [Gen. T. 1S53] ; see Code of Ovil Procedure, § 805.) Discovery of corporate books — compelled by mandamus.] The Su- preme Court has power, by mandamus, on petition of a stockholder, to compel the corporation to exhibit its books for his inspection. (Matter of Steinway, 159 N. Y. 250, affg. 31 App. Div. 70 [1899].) Practice in proceedings for production of books and papers.] Under the present Code of Civil Procedure a party cannot be compelled to produce his books and papers, for the examination and inspection of his adversary before trial, except in the mode pointed out in article 4 of chapter 8 of the Code. The proceeding must be begun by a veriiied petition praying for the discovery or inspection sought, and the only order that can be made in the first instance is JLule 14] General Rules of Peacticb. 99 the one directing the party against whom the discovery or inspection is asked to allow it, or in default thereof to show cause why it should not be done. (Dick V. Phillips, 41 Hun, 603 [1886].) Requisites of petition for discovery.] A petition for the discovery of a copy Book of a iirm, alleged to have been the undisclosed principals in the buying of certain goods, to recover the price of which the action was brought, is defective if its statements in regard to some of the material facta alleged are made upon information and belief, and are unsupported by the affidavit of the plaintiff's informant. The petition in such a proceeding is in tlje nature of a pleading, and although, when duly verified, its allegations, made on the personal knowledge of the peti- tioner, are to be accepted as proofs, yet its statements, made on information and belief, are mere allegations, and do not partake of the nature of proofs. Among the things most essential to be shown to the court, in proceedings of such a character, are the facts from which the court may determine that the book or paper, of which discovery is sought, contains some matter material to the issue in the action, the discovery of which would be to the advantage of the party seeking the discovery. (Goodyear Rubber Company v. Gorham, 83 Hun, 342 [1894].) Service of motion papers.] All papers to be used upon a motion for dis- covery should be served before the motion is made, and the court should reverse an order granting such a motion when it has been made upon a petition on information and belief, and on writings which were not attached to the petition as served. (Smith v. Seattle, Lake Shore, etc., Ry. Co., 47 St. Rep. 283 [Sup. Ct. 1892].) If the discovery is insufficient or defective, an order to show cause is proper.] On the return being made to the first order, the petitioner, if he deems it insufficient, should apply for an order that the opposite party show . cause at a certain time why the particular deficiencies or omissions, alleged should not be supplied. (Hoyt v. Exch. Bank, 1 jDuer, 652 [Gen. T. 1853].) For what purpose an inspection can be had.] Discovery and inspection cannot be granted, except for the purpose of preparation of pleadings or for trial, aud after plaintiff has pleaded he cannot need discovery before the cause is at issue. (Thompson v. Railway Co., 9 Abb. [N. S.] 230 [Gen. T. 1870].) To frame a complaint — granted.] Discovery granted to enable plaintiff to frame his complaint, despite a yearly rendering of account by defendant. (Churchill v. Loeser, 69 St. Rep. 754 [1895].) — ■ — Inspection granted to enable plaintiff to amend complaint. (Bloomberg V. lindeman, 19 App. Div. 370 [1897].) When not granted. An examination of a defendant, to enable the plain- tiff to frame a complaint based upon business dealings between such defendant and a corporation, in which the plaintiff is a stockholder, should not be granted before the plaintiff has exhausted the ordinary avenues of information by inspecting, or attempting to inspect, the books of account of the corporation. (Nathan v. Whitehill, 67 Hun, 398 [1893].) To frame an answer, denied.] Inspection of notes to assist in framing answer denied. (Earle v. Beman, I App. Div. 136 [1896].) 100 CouETS OF Recoed. [Rule li Not allowed after service of an amended complaint and before joining a new issue.] Though issue waa joined after service of the original complaint, an order for discovery cannot be obtained if an amended complaint is served until after a new issue is joined thereon. (Meet v. Cronin, 5 App. Div. 48 [1896].) Must be after suit brought.] There must be a suit pending when the petition is presented. (Code Civil Procedure, § 803.) When discovery not ordered before complaint tiled.] When no complaint has been filed and the nature of the relief sought by the action is not shown by the affidavit, the merits of the case cannot appear, and the court in its discretion should not compel the production of books, (Keeler v. Dusenbury, 1 Duer, 660 [1853].) What the petition must show.] Before serving complaint, petition for order of discovery must show that plaintiff does not possess the facts for which inspection is sought. (Daunenburg v. Heller, 88 App. Div. 548; Sutter V. City of New York, 89 App. Div. 494.) SUBPCENA DUCES TECUM — Subpoena duces tecum insufficient.] In such a case a subpoena duces tecum would not meet the exigencies of the case, for without the books no adequate preparation for the trial could be made. (Allen V. Allen, 33 St. Rep. 876 [Sup. Ct. 1890]; appeal dismissed, see 125 N. Y. 724.) A party under examination before trial — not required to produce papers on subpoena duces tecum.] In the Supreme Court a party to an action will not be compelled to produce his books and papers by siiipcena duces tecum while under examination as a witness before trial under section 873 of the Code of Civil Procedure. (Martin v. Spofford, 3 Abb. N. C. 125 [Chambers, 1877]; De Bary v. Stanley, 5 Daly, 412 [N. Y. Com. PI. Gen. T. 1874].) See next paragraph. A party examined before trial may be required by subpoena duces tecum to produce books, etc.] A party examined before trial under sections 390 and 391 of the Code of Civil Procedure may be required by suhpcena duces tecum to produce books and papers, but they will be used upon the examination in the same way only, as if so produced upon his examination as a witness at the trial. (Smith v. McDonald, 1 Abb. N. C. 350 [N. Y. Sup. Ct. Chamb. 1876].) No discovery where a subpoena duces tecum will suffice.] Whether an action be denominated one in equity for an accounting, or at common law for a breach, the damages recoverable are substantially the same, and the tak- ing and stating of an account is necessary to reach a proper result. In either event plaintiff may enforce the production of defendant's books by suhpanui duearance and appointment of a guardian for an infant, good.] Jurisdiction over the person is as fully acquired by the voluntary appearance of the defendant as by service of a summons. (Code of Procedure, § 139.) WTien upon the petition of infants, over the age of four- teen, a guardiun ad litem has been appointed in a partition suit, the order is 9 13Q Courts of Eecoed. [Eule 18 Valid although no summons had been previously served upon the infants. (Varian v. Stevens, 2 Duer, 635 [Gen. T. 1853].) What answer waives a defect of jurisdiction over the person.] A defend- ant who voluntarily appears and answers, although the answer in terms reserves the right to object to the jurisdiction of the court, is precluded thereby from objecting that the court has not acquired jurisdiction of his person. A voluntary appearance is equivalent to the personal service of the summons. (Mahaney v. Penman, 4 Duer, 603 [Sp. T. 1854].) Service of process upon a non-resident voluntarily submitting himself to the jurisdiction of the court — when set aside.] Where a defendant has volun- tarily submitted himself to the jurisdiction of the court, upon an agreement which was not carried out, that there should be immediate trial without a jury, held, that the service of the summons and an order of arrest upon him were properly vacated and set aside. (Graves v. Graham, 19 Misc. Eep. 618 [1&97].) What answer is not a waiver of a want of jurisdiction over the person.] An appearance, by putting in an answer protesting against the exercise of jurisdiction, is not such an appearance as waives the objection to the juris- diction of the court. Nor is the mere subscription of an answer, with the name of an attorney, such an appearance as to waive any objection to the jurisdiction. (Sullivan v. Frazle, 4 Rob. 616 [N. Y. Supr. Ct. Gen. T. 1865].) What is not a voluntary appearance.] Personal attendance, in compli- ance with a subpoena duces tecum, cannot be deemed a voluntary appearance, although another might have been sent with the books. (Sebring v. Stryker, 10 Misc. Rep. 289 [1894].) See ante, notes under Rule 9. IRREGULARITY — A summons cannot issue for an infant plaintiff until the appointment of a guardian ad litem.] A guardian for an infant plaintiff must be appointed before the issuing of a summons and complaint. (2 R. S. 446.) The Code of Procedure has not abrogated the former practice. (Hill v. Thatcher, 3 How. Prac. 407 [Sp. T. 1848].) Otherwise the service of the summons will be irregular.] Where such guardian was not appointed until the day- of service of the summons and com- plaint, which were dated and sworn to one day previous, held, that the sum- mons was irregular. (See 12 Wend. 191 [1834]; Hill v. Thatcher, 3 How. Prac. 407 [Sp. T. 1848].) Service by a party a mere irregularity.] Service of a summons by a party is a mere irregularity, which cannot be taken advantage of after judg- ment. (Hunter v. Rester, 10 Abb. Prac. 260 [Sp. T. I860].) If the defendant is served by the plaintiff, he must take advantage of the irregularity by motion.] Where a defendant is served with process by the plaintiff personally, he must take advantage of the irregularity by moving to set aside the proceedings before judgment, otherwise his motion will be too late. (Myers v. Overton, 2 Abb. Prac. 345 [N. Y. Com. PI. Gen. T. 1855].) Privilege of witness must be asserted at the first opportunity.] The privilege of a witness in attendance upon the court to be relieved from serv- ice of a summons must be asserted at the first opportunity, or it is waived; Eule 18] General Eules of Practice. 131 and if not claimed at the trial, is not available for the first time on appeal. (Sebring v. Stryker, 10 Misc. Rep. 289 [1894].) Objection that a sheriff did not make service — when to be taken.] The objection that a summons was not served by the sheriff, pursuant to sec- tion 1895 of the Code of Civil Procedure, in an action brought under chap- ter 185 of the Laws of 1857, must be taken before the service of the answer, to be effectual. (Ahner v. N. Y., N. H. & Hart. R. R. Co., 39 St. Rep. 196 [N. Y. City Ct. 1891].)' Suit not regularly commenced — the remedy is by motion.] If a suit has not been regularly commenced, the defendant must relieve himself from such irregularity by motion. (Nones v. The Hope Mut. Life Ins. Co., 8 Barb. 541 [Gen. T. 1850]; Wallis v. Lott, 15 How. Prac. 567.) A pretended service, avoided by motion.] A pretended service of process on a defendant may be disproved by affidavit upon motion. (Wallis v. Lott, 15 How. Prac. 567.) Objection to service of summons cannot be taken by answer or demurrer.] The objection that a summons, as the commencement of a suit, was not properly served, is not available in an answer or demurrer, but only on motion to set the proceedings aside. (Nones v. The Hope Mut. Life Ina. Co., 8 Barb. 541 [Gen. T. 1850].) Irregular service cannot be set up in the pleadings.] The meaning of the section of the Code of Procedure allowing it to be set up as a defense, that " the court has no jurisdiction of the person," is, that the person is not subject to the jurisdiction of the court; not that the suit has not been regu- larly commenced. (Nones v. The Hope Mut. Life Ins. Co., 8 Barb. 541 [Gen. T. 1850].) Where defendant has attempted to evade service, what evidence of non- service will be required before the judgment will be vacated.] Where it appears that a defendant has endeavored to avoid the service of a summons, the court, on a motion to vacate the judgment for nonservioe of the sum- mons, will require the defendant to furnish satisfactory evidence that he was not served. (Southwell v. Maryatt, 1 Abb. Prac. 218 [Sp. T. 1855].) Service set aside where the defendant was induced to come into the State by a trick.] Where a defendant residing in Canada was inveigled into this State by a trick, for the purpose of effecting the service of a summons upon him, the service of the summons and all proceedings dependent thereon were set aside and a warrant of attachment vacated. (Metcalf v. Clark, 41 Barb. 45 [Gen. T. 1864] ; to same effect, Benninghoff v. Oswell, 37 How. Prac. 234 [Sp. T. 1868] ; Carpenter v. Spooner, 2 Code R. 140; affirmed, 3 C. R. 20 [Gen. T. 1850] ; Goupel v. Simonson, 3 Abb. Pr. 474 [Sp. T. 1856] ; Baker V. Wales, 14 Abb. Pr. [N. S.] 331 [1873].) Service on one inveigled into the State set aside — order of arrest not.] The service of a summons and order of arrest may be set aside where the defendant has been inveigled into coming within the jurisdiction, for the pur- pose of making such service, but the order of arrest need not be vacated in consequence thereof. (Higgins v. Dewey, 27 Abb. N. C. 8 [N. Y. Com. PI. 1891], affirming 13 id. 570.) 132 OoTJETs OF Rbcoed. [Eule 18 Set aside when the defendant was induced to come into the State for the purpose of procuring his arrest — action not dismissed.] Upon the appeal from an order setting aside the service of a summons, complaint and order of arrest in an action, and dismissing the action, with costs, and from the judg- ment entered thereon, the papers showed that the defendant, a nonresident of the State of New York, was enticed into tlie State for the purpose of procur- ing his arrest, and serving the summons and complaint upon him. Held, that such order properly vacated and set aside the service of the summons as well as the service of the order of arrest; that it should not have dismissed the action, with costs, when the summons was properly issued to the sheriff and the order of arrest obtained upon sufficient papers and properly delivered to the sheriff. (Beacon v. Rogers, 79 Hun, 220 [1894].) What acts, inducing one to come within the jurisdiction of the court, constitute deceit.] Service of process effected by the plaintiff, requesting a debtor to come to his office for the purpose of settling a claim, but with the undisclosed intent that, if he does not come to terms, he shall be served with process, is effected with deceit, and will be set aside on motion. So held, where the debtor was induced to come within the jurisdiction by such request. (Baker v. Wales, 14 Abb. [N. S.] 331 [Gen. T. 1873].) Witness invited to attend a settlement, protected.] Where it appears that a defendant was invited to come within the State of New York to effect the settlement of a suit, and that the party who extended the invitation intended, if nfegotiations for a settlement failed, to commence an action against such party, the service of a summons upon him will be considered a breach of confidence and will be set aside. (Allen v. Wharton, 36 'St. Rep. 558 [Sup. Ct. 1891].) The witness must have come into the State voluntarily.] In the absence of evidence that a defendant came into the State voluntarily to stand trial on a criminal charge, the service upon him of a summons in an action will not be set aside. (Sander v. Harris, 37 St. Rep. 594 [Sup. Ct. 1891].) It must appear where the witness came from.] A person claiming exemption from civil process of the State of New York must have come from without the jurisdiction of the courts of said State as a party to or witness upon the occasion of the judicial proceeding which he is attending ; an affidavit which does not state where the defendant came from is insufficient. (Day v. Harris, 37 St. Rep. 322 [Sup. Ct. 1891].) Service on a witness before a legislative committee, set aside.] Service of the summons upon a defendant must be set aside where the defendant was served when attending as a witness before a legislative investigating com- mittee, and had come for such purpose from another State and intended to return thereto, irrespective of whether or not his domicile was vriithin the State of New York. A motion to set aside such service may properly be made at any time before the time to answer has expired. (Thorp v. Adams, 33 St. Rep. 797 [Sup. a. 1890].) Service on a nonresident witness claiming to be a citizen of New York.] The service of a summons will be set aside where it appears that the defend- Rule 18] Geneeal Rules of Peacticb. 133 ant had gone to Cuba thirty-seven years before, had remained in business there and in other foreign States, but claimed still to be a citizen of the State of New York, and had come to the State of New York as a witness in a suit, intending to depart, as he did, after giving his testimony. (Hollender v. Hall, 33 St. Rep. 348 [Sup. Ct. 1800].) Service on nonresident attending as a witness in this State is bad.] Where a summons was served upon a resident of another State, wliile attend- ing in this State, in good faith, as a witness, the service was set aside. (Person v. Grier, 66 N. Y. 124 [1876].) Attending trial at a Circuit out of his county.] A party attending an action on trial at a Circuit in a county other than tliat in which he resides is exempt from the service of a summons in a civil action in a Justice's Court of such county. (People ex rel. Hess v. Inman, 74 Hun, 130' [1893].) When made upon a witness in a cause in the United States court. (Grafton v. Weeks, 7 Daly, 523 [1878].) The court has inherent power to prevent service on its officers, etc.] The court has power, independently of the statute, to protect its officers, suitors and witnesses from molestation by means of process of the court. (Lamldn v. Starkey, 7 Hun, 479, 479 [1876].) Effect of a general notice of appearance in such a case. (Ghadwiek v. Chase, 5 Wkly. Dig. 589 [Sp. T. 1878].) Where summons was subscribed with the name of the attorney, after which appeared the words " New York city," it was held an irregularity merely. (Sullivan v. Harney, 53 llisc. Rep. 549.) LACHES — What laches precludes the defendant from moving to set aside a judgment for nonservice.] The court will not set aside a judgment for nonservice of the summons when it appears that, although the defendant had notice of an attempt to effect service upon him, he delayed to move until sup- plementary proceedings were instituted. (Hilton v. Thurston, 1 Abb. Prac. 318 [Sp. T. 1S55]. See, also, Sebring v. Stryker, 10 Misc. Rep. 289 [1894]; Ahner V. N. Y., N. H. & Hart. R. R. Co., 38 N. Y. St. Rep. 196 [N. Y. City Ct. 1891] ; Myers v. Overton, 2 Abb. Prac. 345 [N. 1'. Com. PI. Gen. T. 1855 J.) SUBSTITUTED SERVICE — An order for substituted service is not an order granting a provisional remedy.] An order for substituted service is not an order granting a provisional remedy within the meaning of section 772 of the Code of Civil Procedure. A judge who grants such an order has jurisdic- tion to entertain a motion to vacate or modify it. (McCarthy v. McCarthy, 6 N. Y. Wkly. Dig. 272 [Gen. T. 1878].) Act regarding substituted service applies to infants.] The provision of the act for substituted service upon defendants evading service applies to infants where then- parent refuses to permit the infants to be served. (Stein- hardt v. Baker, 20 Misc. Rep. 470 [1897]; S. C, 25 App. Div. 197 [1898]. Order for substituted service.] The order for substituted service of the summons should require the deposit of a copy in the post-office only in the event of the inability to leave a copy with a person of suitable age at defend- ant's residence. (Overton v. Barclay, 69 N. Y. St. Rep. 716 [1895].) Sufficiency of an affidavit to obtain an order for substituted service, 134 CouETS OF Ebcoed. [Rule 18 under section 435 of Code of Civil Procediu'e, considered. (Nagle v. Taggart, 4 Abb. N. C. 144 [Sp. T. 1877]. See, also, Steinhardt v. Baker, 20 Misc. Eep. 470 [1879]; Evans v. Weinstein, 124 App. Div. 316; Simswick Land Co. t. Hurdock, 129 id. 579.) Fact that plaintiflF merely knew defendant was somewhere in Canada, not sufficient to warrant vacation of order for substituted service under section 435 of the Code. (Hess v. Felt, 112 N. Y. Supp. 470.) ON HUSBAND FOR WIFE — When service in foreclosure on a husband is good service on his wife.] In the foreclosure of a mortgage made by a hus- band and wife on the husband's land, to secure a husband's debt, service upon the husband is good service on both him and his wife. (Xagle v. Taggart, 4 Abb. N. C. 144 [iSp. T. 1877]. See Lathrop v. Heacock, 4 Lans. 2 [Gen. T. 1871]; White v. Coulter, 1 Hun, 366 [1874]. See, also, Foote v. Lathrop, 53 Barb. 183 [Gen. T. 1869]; S. C, 41 N. Y. 358; Code of Civil Procedure, § 450.) In foreclosure suits service on the husband when good service on the wife.] Where, in an action to foreclose a mortgage, a summons, directed to the wife, is served upon the husband, the mortgagor, it is his duty to appear and answer jointly for himself and his wife. Service of the summons upon the wife is only necessary when the proceedings are against her separate estate. (Watson v. Cliurch, 3 Hun, 80 [1874].) Service of subpoena in 1838 upon a husband to give to his infant wife constituted good service upon the wife.] Plaintiff, in 1836, joined with her husband in a mortgage upon his land. In 1838 they were both made parties to a suit for the foreclosure of the mortgage. No copy of the \^Tit of subpceua was servfed upon her; one was served upon the husband, and one delivered to him with the request to hand it to her; she was at the time under age. A judgment of foreclosure and sale was entered, under which the premises were sold. The husband died in 1882. In an action to recover dower. Held, that under the rule and practice in chancery proceedings in force at the time of foreclosure, personal service of the writ upon plaintiflf was not neces- sary, but service on the husband was a good service on both, and this was so, although she was at the time under age, and that, therefore, the action was not maintainable. (Feitner v. Lewis, 119 N. Y. 131 [1890]; Feitner v. Hoeger, 121 id. 660.) ON CORPORATIONS— On a domestic corporation.] Personal service of the summons iipon a defendant, being a domestic corporation, must be made by delivering a copy thereof, within the State, as follows: 1. If the action be against the mayor, aldermen and commonalty of the city of New York, to the mayor, comptroller or counsel to the corporation. 2. If the action is against any other city, to the mayor, treasurer, counsel, attorney or clerk; or, if the city lacks either of those officers, to the officer performing corresponding functions, under another name. 3. In any other ease, to the president or other head of the corporation, the secretary or clerk to the corporation, the cashier, the treasurer, or a director or managing agent. (Code Civil Procediue, § 431.) Service on managing agent.] Papers may be served upon a domestic corporation by delivering the same to its managing agent, although the entire Rule 18] General Eules oe Practice. 135 business of the corporation may not be under his control or in his charge. Service is also legal when made upon the general superintendent of the corpo- ration. (Barrett v. American Telephone & Telegraph Co., 18 Civ. Proo. R. 363 [Sup. Ct. 1890].) Who is a managing agent.] To authorize the legal service of summons and complaint upon a foreign corporation, where it is made upon its managing agent in this State (under section 134 of the Code of Procedure), the managing agent must be one whose agencj' extends to all the transactions of the corpo- ration; one who has, or is engaged in, the management of the corporation in distinction from the management of a particular branch or department of its business. (Brewster v. Mich. C. R. R. Co., 5 How. Prac. 183 [Sp. T. 1850]. See Reddington v. Mariposa L. & M. Co., 19 Hun, 405 [1879]; Sterrell v. Denver, Rio Grande, etc., Ry. Co., 17 Hun, 316 [1879]; Palmer v. Chicago Evening Post Co., 85 Hun, 403 [1895]; Faltiska v. N. Y. Lake Erie, etc., R. R. Co., 12 Misc. Rep. 478 [1895].) A general agent is a "managing agent" of a foreign corporation.] Where a foreign railroad corporation has an office in this State, in which a substantial portion of its business is transacted by a person designated by itself as a general agent, although followed by words indicating his agency to be confined to some one department, such agent is a " managing agent " within the meaning of the provision of the Code of Civil Procedure as to the ■service of summons upon a foreign corporation defendant (§ 432), and a service upon him is valid and binding upon the corporation. (Tuchband v. C. & A. R. R. Co., 115 N. Y. 437 [1889].) ——A general superintendent is a managing agent.] On motion to set aside the service of a summons on a domestic telegraph company it appeared that the summons was served on the general superintendent of the work of operat- ing the lines of the company. Held, that the person served was, the " managing agent " of the company within the meaning of the provision of the Code of Civil Procedure (§ 431) in reference to service on domestic corporations, and so that the service was good. (Barrett v. A. T. & T. Co., 138 N. Y. 491 [1893].) A general superintendent of the corporation is a managing agent.] Per- sonal service of a summons in an action against a corporation upon the general superintendent of the company, who has charge of one of the departments of the corporation, is sufficient. (Barrett v. American Telephone, etc., Co., 56 Hun, 430 [1890].) Who is a managing agent of an insurance company.] An agent of an insurance company properly appointed and qualified to procure and effect insur- ance for the company, residing at a different place from where the principal ofl!ice of the company is located, is such a " managing agent " that legal sarvice of a summons and complaint against the company may be made by serving on him. (Bain v. Globe Ins. Co., 9 How. Prac. 448 [Sp. T. 18o4].) A superintendent controlled by the home office.] Where a person has the control as the agent of a life insurance company, subject to the direction of the home ofiice, of a district comprising the city of Troy and village of Lansingburgh and vicinity, with nine assistant superintendents and sixty-two 136 OouETs OF Khcoed. [Euk 18 suti-agents subject to his orders, and has in su'ch district the entire superin- tendence of all the business of such company, he is a managing agent of tin: company within the meaning of subdivision 3 of section 431 of the Code of CSvil Procedure, and the fact that he is controlled in the discharge of his duties by the home office does not render him any the less a managing agent. (Ives V. Metropolitan Life Ins. Co., 78 Hun, 32 [1894].) " Representative," when not a managing agent.] Upon a motion to set aside the service of a summons upon a person alleged to be the managing agent of a foreign corporation in the State of New York, the affidavits alleged that such person was not, at the time of the service, defendant's managing agent in any sense, but was its " representative " in the city of Chicago, where he resided, and was only temporarily visiting in the city of New York when served. The opposing affidavits were to the effect tliat such person was in New York at the time upon business connected with the company; that he stated that he represented it, and that his name appeared in the Chicago direct- ory as "manager" of the company. Held, that sufficient was not shown to establish that such person was the managing agent of the defendant within the meaning of section 432 of the Code of Civil Procedure, and that there was no valid service of the summons. (Coler V. The Pittsburg Bridge Company, 146 N. Y. 281 [1895].) A ticket seller not a managing agent.] One who merely sella tickets for them in such case is not deemed a managing agent upon whom service of process may be made. (Doty v. Mich. C. R. R. Co., 8 Abb. 427 [N. Y. Supr. Ct. Sp. T. 1859].) A baggage master is not a managing agent.] A snit cannot be legally commenced against a railroad corporation (for loss of baggage or anything else) by the service of a summons upon a " baggage master " in their employ. He is not such a " managing agent " as the statute contemplates, but a general appearance waives the irregularity of such a service. (Tlynn v. Hud. R. E. Co., 6 How. Prac. 308 [Sp. T. 1851].) Service on a telegraph operator, insufficient.] An operator of a tele- graph company in charge of a local office of said company is not a " managing agent " upon whom process can be served. ( Jepson t. Postal Telegraph Cable Co., 22 Civ. Proc. R. 434 [Cattaraugus County Ct. 1892].) Service made on an employee, insufficient.] A corporation cannot be served by delivering papers to an employee, but the managing agent having control in the place in which he is located is the proper person upon whom to make service. (Ruland v. Canfield Pub. Co., 18 Civ. Proc. R. 282 {N. Y. City Ct. 1889].) . A superintendent of soliciting agents is not.] A summons cannot be served upon the superintendent of agent's soliciting for a domestic life insurance company, who has no other authority or power, as, he is not a managing agent of said company. (Sehryver v. Met. Life Ins. Co., 29 N. Y. Supp. 1092 [Ulster Co. Cir. 1894].) Relation of an attorney not that of an agent.] The relation of an attorney and client does not constitute an agency, such that service upon one, having no other connection with a foreign corporation than that of attorney Enle 1,8] Gener/Il Eules of Eeactice. 137 of recorii in an aetian to which it is a party, gives the court jurisdiction {Taylor t. G. S. P. Association, 136 N. Y, 343 [1893].) Form of affidavit of service.] It is not necessary for the person who malies the affidavit to state what grounds he has for knowing that the person whom he served was said corporation's managing agent. {lb.) Who are officers de facto of a religious corpoi-ation, on whom service may be made.] Tlie trustees of a religious corporation and officers appointed by them, whose elections and appointments were in conformity with the for- malities prescribed by the statute, mid who have in fact acted and are acting as such, are at least officers de facto upon whom alone a valid service of process can be made. (BErrian v. Methodist Society, 4 Abb. 424 [X. Y. Supr. Ct. Sp. T. 1857].) Onxailroaa coxpoiatiions.] (See Code of Civil Procedure, § 2880.) ^ On express companies.] (See Code of Civil Procedure, § 2881.) On a board of supervisors.] (1 R. S. 384, § 3.) On foreign corporations.] Personal service of a summons, upon a defendant, being a foreign corporation, must be made by delivering a copy thereof within the State, as follows: 1. To the president, vice-president, treasurer, assistant treasurer, secretary or assistant secretary; or, if the corporation lacks either of those oiEeers, to the officer performing corresponding functions, under another name. 2. To a person designated for the purpose as provided in section 16 of the General Corporation Law. 3. If such a designation is not in force, or if neither the person designated, nor an officer specified in subdivision first of this section, can be found, with due diligence, and the corporation has property within the State, or the cause of action arose therein; to the cashier, a director, or a managing agent of the corporation within the State. 4. If person designated as provided in section sixteen of the General Corpo- ration Law dies or removes from the place where the corporation has its principal place of business within the State and the corporation does not within thirty days after such death or removal designate in like manner another person upon whom process against it may be served within the State, process against the corporation in an action upon any liability incurred within this State or if the corporation has property within the State may, after such death, removal or revocation and before another designation is made be served upon the Secretary of State. (Code of Civil Procedure, § 432.) Foreign insurance company, before doing business in this State.] It must designate the superintendent of insurance as its attorney upon whom legal process may be served. (Laws of 1892, chap. 690, § 30.) Service on life or casualty insurance corporations upon the co-opera- tive or assessment plan. (Laws of 1892, chap. 690, § 203.) Section 430 amended.] Act amending section 430, in relation to desig- nation of person upon whom to serve a summons, by substituting the words " State of New York " in pla<3e of " United States." (Laws of 1899, chap. 524.) Irregular designation of a person on whom process may be served.] 'A certificate filed by an association in attempted compliance with subdivision 138 Courts of Eecoed. [Rule 18 2 of section 432, Code of Civil Procedure, authorizing a nonresident corporation to designate a person witliin the State of New York upon whom process may be served, which does not designate the place where the service can he made, and is not accompanied by the consent of the person designated, nor filed in the Secretary of State's office, is fatally defective. (McClure v. Supreme Lodge, Knights of Honor, 41 App. Div. 131 [1899].) Service on the insurance superintendent for a company not admitted to do business in the State.] The service of the summons upon the superintendent of the insurance department is inoperative, and will be set aside where it appears that the defendant, a foreign fire insurance company intfending to do business in the State of New York, appointed such superintendent its attorney to receive service of process, but that they were refused permission to do business in the State of New York, and thereupon requested such superintend- ent to return to them all the papers filed with him. (Richardson v. Western Home Ins. Co., 29 St. Rep. 820 [Sup. Ct. 1890].) An admission of service by the superintendent of the insurance depart- ment is sufficient.] Where the superintendent of the insurance department of the State of New York has been appointed attorney to receive service of process in actions against a foreign insurance company, as provided by section 1 of chapter 346 of the Laws of 1884, his written admission of service of a summons in such an action, sent to him by mail, constitutes a sufficient service on the company. {Farmer v. National Life Association, 67 Hun, 119 [1893].) Clerk appointed by the superintendent of a foreign fire insurance com- pany to take service.] The superintendent of a foreign fire insurance corpora- tion, who had power to appoint clerks and deputies and to prescribe their duties, appointed a clerk to take charge of the service of papers upon Mm for foreign corporations. Held, that the superintendent had power to appoint a clerk to take charge of the matter of such service, and where service upon the clerk was authenti- cated by the written admission of the superintendent it was valid and binding upon the foreign corporation. (South Publishing Co. v. Fire Association, 67 Hun, 42 [1893].) Law authorizing service on superintendent of insurance department does not preclude any other legal methods of service. (Howard v. Prudential Ins. Co., 1 App. Div. 135 [1896]; Silver v. Western Assurance Co., 3 id. 572 [1896].) Service on cashier of domestic life insurance company, held valid in Russell V. Washington Life Ins. Co., 62 Misc. Rep. 403. — ■ — Service of summons on the cashier of a foreign insurance company in this State can only be justified under subdivision 3 of section 432 of the Code of Civil Procedure. In this case the company had designated the State Superintendent of Insurance as a person authorized to receive service of process, but the plaintiff served the summons upon a person alleged to be its cashier. Summons was not delivered to the sheriff, there was no statement that the cause of action arose in this State, or that the defendant had property here. Held that the service was defective and should be set aside. (Willcox v. Phila. Cas. Co., 136 App. Div. 626.) Eule 18] General Eules of Peactice, 139 Where defendant corporation showa that it has ceased to do business in this State and has revoked the appointment of the Superintendent of Insur- ance as the person to receive service of summons, service on the superintendent is a nullity unless plaintiflf shows that as to him the povfer of attorney was irrevocable. (Badger v. Helvetia Swiss Fire Ins. Co., 136 App. Mv. 32.) The designation of the superintendent to receive service of process is not terminated or revoked by the ratification by the State superintendent of the license of the company to do business in this State. (Idein Bros. v. Ger. Union F. Ins. Co., 66 Misc. Rep. 536.) In default of designation, service on the counsel of a foreign corporation is good.] The service of a summons here on tlie general solicitor or counsel of a foreign corporation is good service, where the corporation has failed to desig- nate a person in this State on whom service of papers could be made, as required by chap. 279 of the Laws of 1855. (Clews v. The Rockford, R. I. & St. L. Co., 49 How. Prao. 117 [Sp. T. 1874].) Where the only person held out by the corporation is occupying the relation of " a managing agent " within the State of New York, and such manager is served with a summons directed to the corporation while he is within the State of New York, the service is a good one. (Young & Fletcher Co. v. Welshach Co., 55 App. Div. 19 [1900].) Service, how made on a foreign fire insurance company.] An action may be commenced, under section 427 of the Code of Procedure, by a citizen of this State against a foreign fire insurance company, in either of the courts designated in that section, by the service of a summons in the form prescribed by the Code as in other civil actions. No other process is required either for the commencement or the maintenance of the action. (Gibbs v. Queens Ins. Co., 63 N. Y. 114 [1875].) On the secretary of a foreign corporation.] Service, within this State, of a summons upon the secretary of a foreign corporation gives, by force of section 432 of the Code of Civil Procedure, the courts of this State jurisdiction of an action against such corporation, and it is not needful, in order to make such service effective, that the corporation should have any property within this State, or that the cause of action should have arisen here. (Miller v. Jones, 67 Hun, 282 [1893].) On the cashier of a foreign corporation.] The service of the summons upon the cashier of a foreign corporation is valid under section 432 of the Code of Civil Procedure, provided such corporations has no other officers within the State. (McCulloh v. Paillard Non-magnetic Watch Co., 38 St. Rep. 406 [Sup. a. 1891].) Service on a director of a foreign corporation in an action under chap. 185 of 1857.] Although by a special statute a foreign corporation was liable to be served by summons in the same manner as a domestic corporation, still, the service of a summons upon a director of such corporation in an action brought to recover a penalty under chap. 185 of the Laws of 1857 is insufficient under section 432 of the Code of Civil Procedure. (Quade v. N. Y., N. H. & Hartford R. R. Co., 39 St. Rep. 157 [N. Y. Supr. Ct. 1891].) 140 CotTETs OF Eecoed. [Kule 18 Service on a nonresident director of a foreign corporation.] A sum- mons only may be served on a nonresident director of a foreign corporation while temporarily in this State, when the cause of action arises here. (Hiller V. B. & M. R. R. Oo., 4 N. Y. Wkly Dig. 426 [Gen. T. 1877].) Service of a summons upon a foreign corporation by serving its presi- dent temporarily in this State not on business of the corporation.] ( Pope v. Terre Haute Car. Manuf. Co., 87 JST. Y. 137 [1881].) Right of its president to resign to avoid service. (Ervin v. Oregon Steam Nav. Co., 22 Hun, 598 [1880].) Service on a corporation under the statute.] Under the statutes of this State, service within tliis State on the proper officer of a foreign corporation is equivalent to personal service on a nonresident natural person. If such personal service cannot be made, service may be made by publication against corpora- tions in the same cases in which it can be made against nonresident individuals. (Barnett v. Chi. & L. H. R. R. Co., 4 Hun, 114 [1875].) On a president after he has resigned.] A president who has resigned from a foreign corporation and swears to the acceptance of hia resignation is not a proper person upon whom to serve papers. (Sturges v. Crescent Jute Mfg. Co., 32 St. Rep. 848 [Sup. Ct. 1890). See, also, Buchanan v. Prospect Park Hotel Co., 14 Misc. Rep. 435 [1895].) Service on a director who claimed to have resigned.] Where the director, who was also secretary and treasurer of a corporation, served with process, claimed to have resigned before the service, but no successor had been chosen, and the by-laws provided that directors should serve for one year "and until such time as successors are chosen," held, that the service of the summons on him was good. (Timolet v. S. J. Held Co., 17 Misc. Rep. 556 [1896].) Service on a director who had resigned, though this reduces the number below the legal minimum, is bad. (Wilson v. Brentwood Hotel Co., 16 Misc. Rep. 48 [1896].) Service on a de facto president of a corporation pursuant to stipula- tion.] Where the service of a summons was made on a de facto president of a corporation, pursuant to a stipulation between the parties, it was held to be binding, though by a subsequent order of another court, he was declared not to be de jure president. (Stillman v. Asso. Lacemakers Co., 14 Misc. Rep. 503 [1895].) On an ofacer of a corporation who had surrendered his stock.] Where a resolution had been passed by the directors of a corporation to transfer all the property to the stockholders, who then surrendered their stock, but there had been no legal resignation of such directors, it was held that the corporation had been legally served by the delivery of the summons to a person who had been the secretary and officer of defendant. (Carnahgan v. Exporters & Pi-oducers Oil Co., 32 St. Rep. 1117 [Sup. Ct. 1890].) On the cashier of a bank whose charter has expired.] Where the charter of a bank has expired and the corporation is no longer in existence, service upon its former cashier is of no effect. ( Hayden v. Bank of Syracuse, 36 St. Rep. 899 [Sup. Ct. 1891].) Service of summons on the grand foreman of the A. 0. U. W. is good. (Balmford v. Grand Lodge A. O. U. W., 16 Misc. Rep. 4 [1896].) Kule 18] General Eules of Pkactice. lil Property of the corporation within this State is essential to an order for publication.] The courts of this State have no jurisdiction to order service of a summons on a nonresident defendant by publication, unless such defend- ant has property within the State when the order is made. (Fiske v. Ander- son, 33 Barb. 71 [Gen. T. I860].) Service on a resident director of a foreign corporation — when bad.] Where the action arises without the State, service on a resident director of a foreign corporation is bad, unless the defendant has property within the State. (Stanton v. U. S. Pipe Line Co., 90 Hun, 35 [1895].) No personal judgment against a foreign corporation — when.] Where service of a summons is made upon a proper officer of a foreign corporation, no attachment having been issued, and no voluntary appearance by the cor- poration, the courts of this State do not get jurisdiction of the defendant, so as to render a personal judgment. (Brewster v. Mich. C. E. R. Co., 5 How. Prac. 183 [Sp. T. 1850].) What must be shown by a corporation seeking to set aside a service on its alleged agent.] Where a corporation moves to set aside service of process upon its agent, on the ground that he is not a managing agent, it is bound to show the precise relations of the agent toward it. (Donadi v. N. Y. St. Mut. Ins. Co., 2 E. D. Smith, 519 [1854]. See, also. Silver v. Western Assurance Co., 3 App. Div. 572 [1896] ; Persons v. Buffalo City Mills, 29 id. 45 [1898].) Temporary receiver of a foreign corporation appointed under service on a managing agent.] The court may appoint a temporary receiver for a foreign corporation in an action in which service has been made upon its managing agent where no person has been designated by said corporation to receive service and none of its officers are within the State. (Glines v. Supreme Sitting Order of Iron Hall, 50 N. Y. St. Rep. 281 [Sup. Ct. 1892].) Service on assistant superintendent held void in Kramer v. Buffa.lo Union Furnace Co., 132 App. Div. 415. See, also, Klein Bros. & Co. v. German Union F. Ins. Co., €6 Misc. Rep. 536, 136 App. Div. 31, 626. General manager.] Service on general manager of foreign corporation who comes into this State on business of the corporation, effectual. Rudd T. McLean, etc., Co., 54 Misc. 49. Leaving summons with salesman in the office is insufficient. Frankel v. Dover Mfg. Co., 104 N. Y. Supp. 459. See, also, Grant v. Cananea C!ons. Copper Co., 189 N. Y. 241. ATTACHMENT — ^Where an attachment has been issued and a levy made the suit will be upheld, though no summons has been served.] Where an at- tachment has been issued against the property of the defendant, and his goods have been taken under it, after which he dies, the court acquires sufficient jurisdiction to enable it to put the suit in such condition that the plaintiff can enforce his provisional lien, notwithstanding a summons has not been served, and the court has sufficient control of the action to substitute the personal representative of the deceased in his place, as a party defendant, in order that the summons may be duly served. (More v. Thayer, 10 Barb. 258 [Gen. T. I&50].) 142 Courts of Eecoed. [Kule 19 Affidavit need not show that an action has been begun.] The affidavits for an attachment need not show that an action has been begun, nor that a summons has been issued. (Maury v. American Motor Co., 25 Misc. Rep. 657 [1898].) When attachment and levy not sustained because of nonservice of the summons on the defendant, who has died.] April 10, 1877, a warrant of at- tachment, summons and complaint against Josiah Strayer were delivered to the sheriff for service. April fourteenth a levy was made under the warrant. On April eighteenth Strayer died, not having been served with the sum m ons. On May twenty-eighth an order was granted allowing the action to be con- tinued by the service of a summons and complaint therein on the defendants, his administrators; and on June eighteenth they were served upon them. Held, that as the summons was not served within thirty days from its issue, the warrant of attachment and the levy thereunder were void. (Kelly v. Countryman, 15 Hun, 97 [1878].) JUDGMENT — When sustained.] What is a sufficient service upon a corpo- ration, to support a judgment. Kieley v. Cent. Complete Combustion Mfg. Co., 13 Misc. Rep. 85 [1895].) DIVORCE — Service of process in an action for.] See notes under Rule 72. DELIVERY TO DEPUTY SHERIFF — Good.] The delivery of a sum- mons to a deputy in charge of the sheriff's office is good service on the sheriff. (Dunfoxd V. Weaver, 84 N. Y. 445 [1881].) EULE 19. Folios to be Numbered — Pleadings, etc., to be Legibly Written — Letter-, press Copies — Objection, When Waived, Except as to Papers for Court — Allegations to be Marked on Papers Furnished to the Court. Every pleading, deposition, affidavit, case, bill, exceptions, re- port, paper, order or judgment, exceeding two folios in length, shall be distinctly numbered and marked at each folio in the margin thereof, and all copies either for the parties or the court shall be numbered or marked in the margin so as to conform to the original draft or entry and to each other, and shall be indorsed with the title of the cause. All the pleadings and other proceed- ings and copies thereof shall be fairly and legibly written or printed, and if not so written or printed and folioed and indorsed as aforesaid, the clerk shall not file the same, nor will the court hear any motion or application founded thereon. All pleadings or other papers in an action or special proceeding served on a party or an attorney, or filed with the clerk of the court, must comply with section 796 of the Code of Civil Pro- cedure and must be written or printed in black characters; and no clerk of the court shall file or enter the same in his office unless it complies with this rule. The party upon whom the paper is Eule 19] General Eules of Practice. 143 served shall be deemed to have waived the objection for non-com- pliance with this rule unless within twenty-four hours after the receipt thereof he returns such paper to the party serving the same with a statement of the particular objection to its receipt; but this waiver shall not apply to papers required to be filed or delivered to the court. It shall be the duty of the attorney by whom the copy pleadings shall be furnished for the use of a court on trial, to plainly desig- nate on each pleading the part or parts thereof claimed to be admitted or controverted by the succeeding pleadings. The first two paragraphs are Rule 20 of 1858. Rule 26 of 1871, amended. Rule 26 of 1874. Rule 19 of 1877. Rule 19 of 1880. Rule 19 of 1884, amended. Rule 19 of 1888, amended. Rule 19 of 1896. The last paragraph is part of Rule 19 of 1877, amended. Eule 20 of 1884. Rule 20 of 1888. Rule 20 of 1896. CODE OF CIVIL PROCEDURE. § 22. Writs, etc., must he in the English language, made out on paper or parchment — what technical words and abbreviations allowed. §§ 518-546. Gfeneral provisions, applicable to pleadings. § 721. Defects in, disregard after verdict, report or decision. I 726. When the original is lost or withheld, the court may order a copy to be filed. § 824. To be filed with clerk, within ten days after service. § 981. Copy pleadings to be furnished on the trial by the plaintiflF. § 2533. Written pleadings may be required in the Surrogate's Court. IRREGULARITY — In motion papers.] A motion to set aside a pleading as irregular, on the ground that it is not properly folioed, will be denied, with costs, if the moving papers contain the defect objected to. (Sawyer v. Solioon- maker, 8 How. Prac. 198 [Sp. T. 1853].) In judgment.] Failure to folio judgment, entered pursuant to the direc- tion of the court, does not render it void. It is merely an irregularity. Serv- ice of a copy thereof, with a notice of entry, is effective to limit the time for an appeal therefrom, unless the judgment cannot be set aside because of such irregularity. To take advantage of it, the party served should return the copy of the judgment, and apprise the opposing attorney of the irregu- larity to which he objects. (Baptist Society v. Tabernacle Church, 9 App. Div. 527 [1896]; S. C, 10 id. 288 [1896].) See, also, Goldstein v. Marx, 73 App Div. 545. ILLEGIBILITY — Of motion papers.] Where motion papers are badly defaced with interlineations and erasures, the motion will be denied for that reason. (Johnson v. Casey, 3 Rob. 710; S. C, 28 How. Prac. 492 [Sp. T. 1865]; Henry v. P.ow, 20 id. 215 [Sp. T. I860].) 144 CouETS OF Ebcoed. [Rule 20 RUIE 20. Service and Settlement of Interrogatories. Interrogatories to be annexed to a commission issued under article second of title three of chapter nine of the Code of Civil Procedure shall be served within ten days after the entry of the order allowing the commission. Cross-interrogatories shall be served within ten days after the service of the interrogatories, un- less a different time is fixed therefor, by the order allowing the com- mission. In case a party shall fail to serve such cross-interroga- tories within the time limited therefor, he shall be deemed to have waived his right to propound cross-interrogatories to the witness to be examined under the commission. Either party may, within two days after the service of the cross-interrogatories, or within two days after the time to serve cross-interrogatories has expired, serve upon the opposing party a notice of settlement of the inter- rogatories and cross-interrogatories before a justice of the court or county judge. The time at which such interrogatories or cross- interrogatories shall be noticed for settlement shall be not less than two nor more than ten days after the service of the notice. If neither party serves such a notice within the time limited there- for, the interrogatories and cross-interrogatories are to be deemed settled as served, and shaE be so allowed without notice. CODE OF CIVIL PROCEDURE. §§ 887, 888. When commission to issue. § 889. HovT and upon what terms granted. § BQO. Order made by judge. S 891. Inturrogatories ; hmv settled. § S92. Id.; to be annexed; directions for return. § 893. Com mission to examine wholly or partly upon oral questions. % 894. When open commission may issue, or depositions may he taken. § 895. Depositions where adverse party is an infant or committee. § 896.. Notice of examination upon oral questions. § 891. Open commission. § 898. Order directing depositions to be taken. f 899. Before whom depositions may be taken; notice of taking. § 900. How depositions taken. § 901. Commission or order to take depositions; how executed and returned. § 902. Certificate of execution. Kule 20] Geneeal Eules of Peactice. 145 § 903. Certificate, a sufficient return. § 904. Return by agent. s 905. If agent is sick or dead. §§ 906, 907. Filing deposition, etc., so returned. § SOS. Commission, etc., by consent. § 909. Where a return to be kept; parties may inspect it, etc. § 910. When deposition may be suppressed. § 911. Deposition, etc., evidence. § 912. When interrogatories and deposition may tie in a foreign language. § 913. Letters rogatory. INTERROGATORIES — Settlement of.] While ordinarily the court re- serves questions on the settlement of interrogatories until trial, yet where right to cross-examine is abused cooirt may restrict the examination. (Tread- well V. Green, 89 App. Div. 60.) Moving affidavit must show that witness is not within the State. (Matter of Adams, 31 App. Div. 298.) Objection to testimony may be made on trial. (Wanamaker v. Mc- Graw, 168 N. Y. 135.) Justice under whom interrogatories were settled, without power to pass upon objections to them. (Spurr & Sons v. Empire State Surety Co., 122 App. Div. 449.) In the absence of bad faith, the provisions are mandatory. (Oakes v. Eiter, 118 App. Div. 772.) What must be shown as to residence. (Brown v. Russell, 58 App. Div. 218.) Must show that his testimony is material. (Wallace v. Blake, 16 Civ. Pro. 384.) What must be shown to obtain commission. (Boyes v. Bossard, 87 App. Div. 605.) Objections to questions should be raised at the trial. (Irving v. Royal Exch. Assurance of London, 122 App. Div. 56.) Order may be appealed. ( Jennison v. City Sav. Bank, 85 N. Y. 546.) As to granting open commission, see Deery v. Byrne, 120 App. Div. 6. When order to take deposition unauthorized. ( Stuart v. Spofford, 122 App. Div. 47.) Original paper need not be annexed to interrogatories. (Com. Bank V. Union Bank, 11 N. Y. 203.) Defective deposition taken without the State returned for correction. (Risley v. Harlow, 48 Misc. Rep. 277.) When interrogatories should be framed in both English and foreign languages. (Roth v. Moutner, 115 App. Div. 148.) ■ As to power to issue letters rogatory, see Decauville Automobile Co. v. Met. Bank, 124 App. Div. 478. See, also, Newton v. Porter, 69 N. Y. 133; Goldmark v. Met. Opera House Co., 22 N. Y. Supp. 136; ClarK v. Man. R. Co., 102 N. Y. 656; Wanamaker v. McGraw, 168 N. Y. 125 ; Cudlip v. N. Y. Ev. Journal Co., 180 N. Y. 85. 10 146 Courts of Eecobd. [Kule 21 EITLE 21. Non-enumerated Motions — For What Day Noticed. Non-enumerated motions, in the Supreme Court, except in the first and second districts and motions noticed to be heard in Erie county, shall be noticed for the first day of the term or sitting of the court, accompanied with copies of the affidavits and papers on which the same shall be made, and the notice shall not be for a later day, unless sufficient cause be shown (and contained in the affidavits served), for not giving notice for the first day. In other courts such motions may be made on any day designated by the judges therof. In the Appellate Division such motions may be noticed for any motion day in the term. Rule 39 of 1858. Rule 27 of 1871, amended. Rule 27 of 1874, amended. Rule 21 of 1877. Rule 21 of 1880. Rule 21 of 1884. Rule 21 of 1888, amended. Rule 21 of 1896. CODE OF CIVIL PROCEDURE. § 768. An applioation for an order is a motion. § 769. Motions in the Supreme Court, where to be made. I 770. Motion in New York city (except for a new trial on the merits) may be made to a judge out of court. § 771. In the absence of a judge, the motion may be transferred to another judge. §§ 772, 773. What judges may make orders out of court. § 774. Review of an order made by a judge of another court. § 776. Subsequent application for an order after the denial of a proper application therefor. § 777. Application for judgment — how withdrawn — second application, when forbidden. § 778. Penalty for violating sections 776, 777. § 779. Costs of a motion — how collected. § 780. Time of notice of motion — order to show cause. NOTICE — When for other than first day of term.] A motion may be no- ticed for a day in term other than the first, if a sufficient excuse appear upon the moving papers. (Whipple v. Williams, 4 How. Prac. 28 [Sp. T. 1849]; Ogdensburg Bank v. Paige, 2 Code R. 67 [Sp. T. 1849]; Walrath v. Killer, Id. 129 [Sp. T. 1850].) Order to show cause must be returnable the first day of the term.] The rule requiring a motion to be noticed for the first day of the term is appli- aable to an order to show cause. (Power v. Village of Athens, 19 Hun, 165 [1879]. See Matter of Maginn, 100 App. Div. 230.) Eule 21] Genebal Eules of Pkactice. 147 COPIES OF PAPERS — Omission of the jurat in a copy of an afadavit — not fatal.] The omission to include the jurat in the copy of the affidavit served is not fatal. (Graham v. MoCoun, 5 How. Prac. 353 [Sp. T. 1861]; S. C, 1 Code R. [N. S.] 43; Barker v. Cook, 16 Abb. 83 [Gen. T. 1863] ; S. C, 25 How. Prae. 190, 40 Barb. 254. iDefects in copies only, see Chatham Nat. Bk. V. Mer. Nat. Bk., 1 Hun, 702 [1884] ; Union Furnace Co. v. Shipland, 2 Hill, 413 [1842]; Livingston v. Cheetham, 2 Johns. 479 [1807].) Copies served should include signatures, etc.] Copies of papers served should include the signature of counsel, the jurat, etc. {Littlejohn v. Munn, 3 Paige, 280 [1832].) Relief — in case of an omission to serve the order.] Kelief granted where the party omits to serve the copy order, or affidavit. (Quinn v. Case, 2 Hilt. 467 [Com. PI. Gen. T. 1839]; Littlejohn v. Munn, 8 Paige, 280 [1832].) The pleadings are not involved in the papers required to be served with the notice of motion.] It would seem that the requirement that a notice of motion be accompanied by copies of the affidavits and papers on which it is made, does not include pleadings already served, and which need not be served again. (Badger v. Gilroy, 21 Misc. Rep. 468 [1897].) Papers served on a previous motion need not be reserved.'] A moving party who desires to use papers which on a previous motion have been re- cently served upon the adverse party and are still in the latter's possession, is not bound to serve such papers again; notice of his intention to use them is sufficient in analogy with Rule 23. (Deutermann v. Pollock, 36 App. Div. 522 [1899].) What papers read on motion.] Only those papers that are served with the notice can be read on the motion. (Noxthrup v. Village of Sidney, 97 App. Div. 271.) Order of Surrogate — form of.] A surrogate's order should contain a reference to the papers upon which it was made. (Matter of Gowdey, 100 App. Div. 275.) RETURN — To whom to be made.] Where papers are to be returned for irr^ularity, if there be no attorney's name on them, they are to be returned to the party. If the party is a municipal corporation, having a counsel chosen under a statute, they should be returned to him. ( Taylor v. The Mayor of New York, 11 Abb. 255 [Sp. T. I860].) Indorsement stating defect.] An answer returned because of defective verification, must have an indorsement to that effect. (Snape v. Gilbert, 13 Hun, 494 [1878]; Schreyer v. Dooley, 1 Law Bulletin, 73 [Sp. T. 1879].) Objection — must be explicitly stated.] Where a party returns a paper as irregular, he must state his objections to it explicity. A mere statement that the service is irregular, and not in compliance with certain sections of the Code, is not enough. (Chemung Bank v. Judaon, 10 How. Prae. 133 [Sp. T. 1854]; Broadway Bank v. Danforth, 7 id. 264 [Sp. T. 1852].) Jurisdiction of the Appellate Division — over motions.] The Appellate Division has jurisdiction to hear and determine in the first instance any motion, contested or ex parte, that a Special Term may determine. (Matter of Barkley, 42 App. Div. 597 [1899].) 148 CouETS OF Eecoed. [Eule 22 Further return to writ of certiorari.] A further return will not be required to state facts not called for by the writ. (People ex rel. Meehan v. Greene, 103 App. Div. 393.) In general] Motion defined, in Matter of Jetter, 78 N. Y. 601. Application to correct order should be made before justice who heard motion. (Dinkelspiel v. Levy, 12 Hun, 130.) Although it is the better praxjtice for the respondent to submit all his .affidavits, to the opposing party in advance of an argument of a motion, such submission is not required in the second district by General Rule 21. (Wanser V. DeNyse, 116 App. Div. 796. See, also. Matter of Petition Argua Co., 138 N. Y. 565; Androvette v. Bowne, 15 How. Prac. 75; Matter of Quick, 92 App. Div. 121; aflfd., 179 N. Y. 601; Tracy v. Lichtenstadter, 113 App. Div. 754; •Gross V. Gorsch, 56 Misc. Rep. 649; Wilner v. Ind. Order Abawos Israel, 122 App. Div. 615; Obermeyer & Liebnau v. Adisky, 123 id. 272; Hirschfeld v. Hassett, 59 Misc. Rep. 154; Roth v. Wallach, Id. 515.) RULE 22. Motions to strike out Irrelevant Matter — Notice of. Motions to strike out of any pleading matter alleged to be irrele- vant, redundant or scandalous, and motions to correct a pleading on the ground of its being " so indefinite or uncertain that the pre- cise meaning or application is not apparent," must be noticed before demurring or answering the pleading and within twenty days from the service thereof. The time to make such motion shall not be extended unless notice of an application for such ex- tension, stating the time and place thereof, of at least two days, shall be given to the adverse party. Rule 50 of 1858. Rule 28 of 1871. Rule 28 of 1874, amended. Rule 22 of 1877. Rule 28 of 1880. Rule 22 of 1884. Rule 22 of 1888, amended. Rule 22 of 1896. CODE OF CIVIL PROCEDURE. §§ 620-536. Form and sufficiency of pleadings and veriiication. § 537. Frivolous pleadings, how disposed of. § 538. Sham defenses to be stricken out. § 545. Irrelevant, redundant and scandalous matter in pleadings — stricken out on motion. § 546. Indefinite or uncertain allegations cured by amendment. I 721. Defects cured by verdict, etc. See note under Rule 37. IRRELEVANT — Power of the court to strike out allegations in pleadings as irrelevant — how limited.] The court has no power, on motion of a party Eule 22,] General Eules of Peactice. 149 defendant, to strike out all the allegations of the plaintiff referring to himself, simply because they are irrelevant to an alleged cause of action against some other defendant; neither the question as to whether the moving party waa properly made a defendant, nor the question as to whether the facts alleged make out a good cause of action as to him, can be raised on such a motion. The power to strike out, on motion, averments in a pleading because of irrele • vancy, applies simply to such matter as is irrelevant to the cause of action or defense attempted to be stated in the pleadings against the moving party. (Hagerty v. Andrews, 94 N; Y. 195 [1883].) Facts alleged in support of a denial, not stricten out.] A defendant is entitled to traverse all the allegations of the complaint, and where, in a suit for breach of promise to marry, the complaint alleges that there has been no misconduct on the part of the plaintiff, the answer may deny the allegation, alleging certain facts in support thereof, and such matter cannot be stricken out as irrelevant, redundant and scandalous inasmueli as it would affect the judgment in mitigating damages, though in form improperly pleaded as a partial defense. (Keegan v. Sage, 31 Abb. N. C. 54 [N. Y. Com. PI. 1893].) When an answer is not frivolous.] An answer denying any knowledge or information sufficient to form belief as to the truth of the material allega- tions contained in a complaint is not frivolous; it is only when the allegation of want of information relates to some affirmative allegation of defense, not putting in issue the allegations of the complaint, that it is subject to that criticism. The fact that a denial contained in an answer is inconsistent with other portions thereof is not a good ground for striking out sueh denial. (Sheldon v. Heaton, 78 Hun, 50 [1894].) Irrelevant matter — argument as to.] When elaborate argument is necessary in order to show that matter is irrelevant, an order should not be granted directing sucli matter to be stricken out as irrelevant. (Gaylord v. Beardsley, 54 St. Eep. 234 [Sup. C?t. 1893].) What is irrelevant matter.], A motion should be granted to strike out matter as irrelevant which it is not necessary to prove, and by which a court will not be affected in its decision. (Peaslee v. Peaslee, 2 Msc. Rep. 573 [N. Y. Supr. Ct. 1893]; Fasnaeht v. Stehn, 5.3 Barb. 650; S. C, 5 Abb. [N. S.] 338 [Gen. T. 1869] ; Park & Sons Co. v. National Wholesale Druggist Assn., 30 App. Div. 508 [1898].) What is not irrelevant matter.] (Bussey & McL. Stove Co. v. Wilkins, 1 App. Div. 154 [1896]; Lynch v. Second Ave. R. R. Co., 7 id. 164 [1896]; Scharf V. Warren-Scharf Asphalt Paving Co., 15 id. 480 [1897]; Palmer v. Palladium Printing Co., 16 id. 270 [1897]; Dunton v. Hagerman, 18 id. 146 [1897]; Wend- ling V. Pierce, 27 id. 517 [1898] ; Barney & Smith Car Co. v. Syracuse R. T. Ry. Co., 24 Misc. Rep. 169 [1898]; Phillips v. Phillips, 22 id. 475 [1898]; Warner V. Billings, 53 N. Y. Supp. 805 [1898].) Matter irrelevant as to one party but irrelevant as to another, will not be stricken out. (Brown v. Fish, 76 App. Div. 329.) ■ An answer cannot be considered frivolous unless it is bad as a whole. (Strong v. Sproul, 53 N. Y. 497 [1873]; Munger v. Shannon, 61 id. 251 [1874].) 150 CouETS OF Recoed. [Eule 22 What it comprehends.] (Lee Bank v. Kitching, 11 Abb. 435 [N. Y. Supr. Ot. Gen. T. I860]; I>ovan v. Dinsmore, 33 Barb. 86 [Gen. T. I860]; Aubery v. Fiske, 36 N. Y. 47 [1867]; Cahill v. Palmer, 17 Abb. 196 [Gen. T. 1863]; Robertson v. N. Y. Press Co., 2 App. Div. 49 [1896]; Schroeder v. Post, 3 id. 411 [1896]; Henriques v. Garson, 26 id. 35 [1898].) Not favored by the courts.] Such motions not favored by the courts, and where evidence of the facta pleaded in the allegations sought to be stricken out has any bearing on the subject-matter of the litigation, motion ■will be denied. (Dalziel v. Press Pub. Co., 52 Misc. Rep. 207.) Does not apply so as to authorize the determination of the validity of a defense. (Rankin v. Bush, 108 App. Div. 295.) Motion to strike out, as irrelevant, a defense which is complete in itself, will be denied, although the defense is insufficient. (Noval v. Haug, 48 Misc. Rep. 198.) Motion to dismiss complaint on the ground that it does not state facts sufficient to constitute a cause of action, haa the effect of a demurrer and admits allegations of complaint. (Rothman v. Kosower, 48 Misc. Rep. 538.) Power of striking out should be used with reluctance and caution. (Matter of City of New York, 48 Misc. Rep. 602.) Where bare inspection of demurrer does not indicate that it was made in bad faith, it cannot be disposed of as frivolous. (Hildreth v. Mercantile Trust Co., 112 App. Div. 916. See, also, Beyer v. Henry Huber Co., 100 N. Y. Supp. 1029; Citizens' Cent. Nat'l Bank v. Munn, 49 Misc. Rep. 99.) Motions to strike out portions of pleadings as irrelevant are addressed to the discretion of the court, are not favored, are denied tmless it is clearly shown that the allegations are redundant and that the adverse party will not be harmed and are granted only when a denial will prejudice the moving party. (Indelli v. Lesster, 130 App. Div. 548; Hamilton v. Hamilton, 124 App. Div. 619.) An entire defense cannot be struck out as irrelevant, though it be insufficient. (Tierney v. Helvetia- Swiss Ins. Co., 129 App. Div. 694.) Facts anticipating a defense of estoppel are irrelevant in a complaint. (Welcke v. Trageser, No. 2, 121 App. Div. 737.) If in any view relevant.] The matter pleaded should not be stricken out, if it may be relevant in any possible view. (Dunton v. Hagerman, 18 App. Div. 146 [1897].) It must appear on the face.] The irrelevancy or redundancy must ap- pear upon the face of the pleadings. (Stewart v. Forst, 15 Misc. Rep. 621 [1896] .) The matter must be clearly irrelevant.] (Follett v. Jewett, 11 N. Y. Deg. Oba. 193 [Sp. T. 1853] ; McGregor v. McGregor, 35 How. Prac. 385 [Gen. T. 1865]; Anon., 2 Sandf. 682 [1850]; Littlejohn v. Greeley, 22 How. Prac. 345 [Sp. T. 1861] ; Lynch v. Second Ave. Railroad Co., 7 App. Div. 164 [1896].) If not, the remedy is by demurrer.] (Struver v. Ocean Ins. Co., 9 Abb. 23; S. C, 2 Hilt. 475 [N. Y. Com. PI., Gen. T. 1859]. See Lee Bank v. Kitching, 11 Abb. 439 [Gen. T. I860]; S. C, 7 Bosw. 664].) When the remedy is by demurrer or motion on the trial.] (Walter v. Towler, 85 N. Y. 621 [1881]; Emmons v. McMillan Co., 20 Misc. Rep. 400 [1897]; Kelly v. Ernest, 20 App. Div. 90 [1898].) Eule 22] General Rules of Peactice, 151 The entire pleading will not be stricken out.] (Fasnacht v. Stehn, 5 Abb. [N. S.] 338 [Gen. T. 1809]; Blake v. Eldied, 18 How. Prac. 240 [Sp. T. 1858]; Howell v. Knickerbocker Life Ins. Co., 24 How. Prac. 475 [Sp. T. 1863]. See, also, Frank Brewing Co. v. Hammersen, 22 App. Div. 475 [1897].) In part relevant.] Where a part of the paragraphs is relevant the omission to strike out the whole thereof will be denied. (Raines v. N. Y. Press Co., 12 Hrni, 515 [1895].) A part of a pleading in tort, the rest being on contract, stricken out.] .Hunter v. Powell, 15 How. Prac. 221 [Gen. T. 1857].) When answer allowed to stand.] The defendants in a foreclosure suit served and amended answer which alleged facta showing that one of the defendants had no interest whatever in the mortgaged premises; that he was induced by the representations of the mortgagee to sign the bond and mort- gage in order to cut off his right as tenant hy the curtesy, although he had no such right; that he signed the same upon the statement of the plaintiff that it ■was necessary for him to do so as he was the husband of one of the mort- gagors, and that there was no consideration for his signing such bond and mortgage. Upon the plaintiff's motion, such amended answer was stricken out. Held, that the defendants were entitled to have the benefit of their answer, and that it should have been allowed to stand. (French v. Row, 77 Hun, 380 [1894].) Unnecessarily elaborate statements, not stricken out.] Where state- ments are material to the points in question they cannot be stricken out as sham or irrelevant though unnecessarily elaborate. (Nordlinger v. McKim, 38 St. Rep. 886 [Sup. Ct. 1891].) In equity actions.] In an equitable action great latitude is allowed the court with reference to striking out irrelevant matter, and where the matter alleged to be irrelevant might bear upon the question of costs, which rests in the discretion of the court, the refusal to strike it out is not error. (Town of Dunkirk v. L. S. & M. S. R. Co., 75 Hun, 366 [1894].) What papers should be served.] A copy of the expurgated pleading need not be served after a portion of the original pleading has been stricken out as irrelevant. (Ross v. Dunsmore, 12 Abb. 4 [Sp. T. 1861]; S. 0., 20 How. Prac. 328.) Denial of xnotion to strike out allegations as to a deceased defendant.] Where a suit has been discontinued as to one of the defendants, who is dead, the plaintiff is not prejudiced by an order denying motion to strike out all allegations referring to deceased. (Sleeman v. Hotchkiss, 37 St. Rep. 648 [Sup. Ot. 1891].) Matter not stricken out because inconsistent.] Where matter in an an- swer is not irrelevant or redundant, although it may be construed as incon- sistent, a motion to strike it out will not be granted. (MacCoU v. American Union Ins. Co., 89 Hun, 490 [1895].) Laches in an application to strike out inconsistent defenses.] A motion to strike out of a pleading matter alleged to be irreleva.nt, redundant or Bcandalous, cannot be granted where the motion therefor is not made within twenty days after service of the pleading. A defendant may plead as many 152 CouETS OF Eecoed. [Rule 22 defenses as he has, even if they are inoonsietent. An answer cannot be stricken out or judgment rendered thereon where a part only is frivolous. (Siriani v. Deutsch, 12 Misc. Rep. 213 [Supr. Ct. Sp. T. 1895].) The validity of a defense cannot be determined on motion.] Whether a defense to an action set up in an answer is or is not bad, cannot be de- termined on a motion ; the proper remedy is by demurrer. ( Smith v. American Turquoise Co., 77 Hun, 192 [1894].) Sufficiency of a pleading — not determined on a motion.] When the sufSciency of a pleading cannot be determined on a motion. (Walter v. Fowler, 85 N. Y. 621 [1881]; Goodwin v. Thompson, 88 Hun, 598 [1895]; Mason v. Butcher, 67 N. Y. St. Eep. 590 [1895].) To strike out redundant matter.] A motion to strike out portions of a reply as redundant will not be granted where there exists only reiteration. (Pope Mfg. Ct. v. Rubber Mfg. Co., 100 App. Div. 349.) SCANDALOUS — Striking out scandalous matter, discretionary.] The granting of a motion to strike out scandalous matter from an answer is within the discretion of the court, especially where it cannot by itself constitute a defense. (Wehle v. Loewy, 2 Misc. Eep. 345 [N. Y. Com. PI. 1893].) If petition for alimony and counsel fees contains sufficient allegations to warrant relief, the right thereto is not impaired by scandalous and irrelevant matter contained in the petition. (Hawley v. Hawley, 95 App. Div. 274.) PlaintiH's attorney may move.] When the plaintiff's attorney is the person aggrieved by the scandalous matter he may move to strike it out. It is no answer thereto that no party to the action is aggrieved. (Ih.) TO MAKE DEFINITE AND CERTAIN — Insufficiency must clearly appear.] It should be entirely clear upon a motion to the court to make a pleading more definite and certain that the pleading is iusufiicient, before the court will interefere. (People v. Tweed, 63 N. Y. 201 [1875]; Cook v. Matteson, 33 St. Eep. 497 [Buffalo Supr. Ct. 1890].) When it will be granted.] Marvel v. Stone, 3 App. Div. 413 [1896]; Hattermann v. Siemann, 1 id. 486 [1896]; Texas, etc.. Oil Co. v. Mutual Fire Ins. Co., 58 Hun, 560 [1891]; Persch v. Allison, 85 id. 429 [1895]; Post v. Blazewitz, 13 App. Div. 124 [1897]; Eolker v. Gonzalez, 32 id. 224 [1898]; Dexter v. Village of Fulton, 86 Hun, 433 1895].) When it will be denied.] Mason v. Dutcher, 67 N. Y. St. Eepr. 590 [1895]; Pittenger v. S. T. Masonic Eelief Assn., 15 App. Div. 26 [1897]; Kelly V. Sammis, 25 Misc. Rep. 6 [1898]; Kelly v. Ernest, 26 App. Div. 90 [1898] ; Kucher v. Carrl, 23 Misc. Eep. 250 [1898] ; O'Brien v. Ottenberg, 59 St. Eep. 379 [Sup. Ct. 1894].) When not indefinite.] If the court can see the meaning of the allega- tions with ordinary certainty the pleading is not indefinite. (Madden v. The Underwriting Printing & Publishing Co., 10 Misc. Eep. 27 [N. Y. Supr. Ct. Sp. T. 1894].) Reference to ascertain facts — when improper.] A motion to make an answer more definite and certain must be decided upon an examination of the answer. A reference to ascertain facts cannot be ordered. (Hopkins v. Hop- kins, 28 Hun, 436 [1882].) Eule 22] Geneeal Eules of Peactice. 153 Effect of other sufScient allegations.] The fact that the complaint con- tains other allegations sufficient to warrant the relief asked for does not de- prive the defendant of the right to have other indefinite allegations made definite. (People v. N. Y. Juvenile Guardian Society, 6 N. Y. Wkly. Dig. 136 [Gen. T. 1878].) Motion denied where the moving party had as definite knowledge as the ether party.] Where it is apparent from the allegations of a pleading that the adverse party has as much knowledge on the subject as the one who pleads, a motion should not be granted directing the same to be made more definite and certain. (Cook v. Matteson, 33 St. Rep. 497 [Buffalo Supr. Ct. 1890].) Separation of causes of action granted on motion to make the complaint more definite and certain.] (Cohn v. Jareeky, 90 Hun, 266 [1895].) Fraudulent acts — surplusage.] A motion to make a pleading more definite and certain will not be granted, where the allegations therein as to fraudulent acts may be regarded as surplusage. (Cook v. Matteson, 33 St. Eep. 497 [BuflFalo Supr. Ct. 1890].) As to a counterclaim, when denied.] Where a counterclaim is alleged in answer to a complaint on contract, a motion to make the answer more definite and certain as to whether the counterclaim sounds in tort should be denied where such answer, although alleging fraudulent acts which may be treated as surplusage, shows an intention to set up a claim on contract, and the demand for judgment is not for damages but for money and costs. (Cook V. Matteson, 33 St. Eep. 497 [BuflFalo Supr. Ct. 1890].) Plaintiff not required to elect to charge fraud or mistake.] The court should not grant the motion of defendant to have the complaint made more definite and certain in an action for relief on the ground of false items and mistakes in an account statea when it is apparent from the complaint that the fraud consisted in incorrect statements as to market prices of goods which were the subject-matter, nor should plaintiff be compelled to elect whether the errors in the account were simply mistakes or were made with intent to de- fraud. (Stern v. Ladew, 51 St. Eep. 456 [Sup. Ct. 1893].) Motion to make a complaint definite, etc., not granted after answer.] The defendant cannot move to compel plaintiff to make his complaint more definite and certain after having served an answer thereto, and if the com- plaint contains a cause of action a motion to dismiss the same should not be granted. (Huber v. Wilson, 33 St. Eep. 849 [Sup. Ct. 1890].) Definite lines of work not required to te specified.] In an action against two defendants the motion of one to have the complaint made more definite by setting out explicitly the lines of work to be performed by him, for a company whose charter plaintiff wishes to vacate, should not be granted, if such lines appear sufficiently upon the plans which his co-defendant has filed. (People v. N. Y. Central Underground Ey. Co., 39 St. Eep. 571 [Sup. Ct. 1891].) Allegations as to knowledge of fraud which are not obscure.] A com- plaint in an action for fraud and deceit in inducing the plaintiff to purchase certain promissory notes, after setting forth the alleged false statements of the defendant, alleged that the defendant knew his statements to be false, and that 154 Courts of Eecoed. [Kule 22 he "knew of facts and circumstances sufficient to charge him with knowledge of the falsity" of his statements. Held, that the latter allegartion was not obscure, and that a motion to make the complaint more definite and certain should be denied. (American National Bank v. Grace, 67 Hun, 432 [1893].) Name of person to whom information was given, not required.] Where a complaint in an action alleges that the agent of the defendant, a stock broker, gave information which was false and fraudulent, a motion to make said complaint more definite and certain by showing the name of the agent was properly denied. (Warsaw v. Hotchkiss, 27 N. Y. Supp. 491 [Sup. Ct. 1894].) Requiring a statement whether the defendant is charged personally or officially.] In an action in which, before the trial, a motion is made to compel plaintiff to make the complaint definite, an order may be granted directing him to allege whether the defendant will be charged personally or oflBcially. (Seasongood v. Fleming, 74 Hun, 639 [1893].) Requiring a definite description of the premises in question.] Upon a motion to make a complaint more definite and certain in an action brought to recover for the use and occupation of real property, an order may be granted directing plaintiff to include a definite description of the premises alleged to have been occupied. (Gtistaveson v. Otis, 75 Hun, 611 [1894].) Action for a failure to procure insurance.] In an action against insur- ance brokers for a failure to procure insurance, the complaint alleged that de- fendants assumed and undertook to procure renewals of insurance for the plaintiff, and that they neglected and failed to do so. A motion to make the complaint more definite and certain was denied, the order reciting a stipula- lation by plaintiff's counsel that plaintiff relied on the employment of defend- ants as insurance brokers, and their acceptance of the employment and under- taking as such to obtain insurance, and not upon an absolute agreement on their part to renew or obtain insurance. Held, no error, as defendants were sufficiently protected thereby. (Van Tassel v. Beecher, 8 Misc. Rep. 26 [Supr. Ct. 1894].) Denials upon information — when insufBcient.] When the plaintiff is required by the court, under section 616 of the Code of Civil Procedure, to reply to new matter set up in the answer which constituted a defense by way of avoidance, averring the presentation and acceptance of an offer in writing containing sundry terms of sale and providing for the execution of mutual releases, and tendering an issue fatal to the plaintiff unless its legal effect could be avoided, a reply is not sufficient which merely denies knowledge or information sufficient to form a belief as to whether the offer is correctly set forth in the answer. The court will require such an insufficient reply to be made more definite and certain. (Steinway v. Steinway, 74 Hun, 423 1893] ; affd., 157 N. Y. 710.) —What is not an excuse for an insufficient pleading.] It is not an excuse for such an insufficient reply, that the plaintiff cannot be expected to remem- ber accurately the terms of a writing read in his presence several years ago, when he could have demanded an inspection of the original, and, on refusal, the court would have compelled its production. (lb.) Kule 22,] General Kules or Peactice. 155 Denials not required to be made more definite by adding other matter.] Where an answer definitely and certainly puts in lasue the allegations of the complaint the plaintiff is not entitled on a motion to make definite and cer- tain to have further statements added to it. (White v. Koster, 89 Hun, 483 [1895].) Defendant not required to be more definite than plaintiff has been.] Where a plaintiff has not himself set forth a will nor given the provisions thereof verbatim, he cannot insist that a defendant, who has followed his ex- ample by setting forth what he considers to be a summary of these provisions and a construction thereof, shall make his answer more definite and certain by alleging in the words of the will the part thereof which contains the devise under which the defendant claims. (Eisner v. Eisner, 89 Hun, 480 [1895].) A motion to make more definite and certain will be denied where no particular clauses thereof are specified. A motion which asked merely that plaintiff be required to show clearly what he intended to claim in relation to the performance of a contract is properly denied. (Pope Mfg. Co. v. Rubber Mfg. Co., 100 App. Div. 353.) Motion is proper remedy.] A motion is a proper remedy to require a. complaint to ,be made more definite and certain, and defendants are not limited to a demand for a bill of particulars. (Viner v. James, 92 App. Div. 542.) Motions to make a complaint miore definite and certain, or, in the alternative, for a bill of particulars, are improperly joined. (Mutual Life Ins. Co. V. Grannis, 118 App. 'Div. 830; Mutual Life Ins. Co. v. McCurdy, No. 2, 118 id. 822. 'See, also, McGehee v. Cooke, 55 Misc. Rep. 40 Carlson v. Albert, 117 App. Div. 836; Christenson v. Pincus, Id. 810 Ebling' Brewing Co. v. Adler, 103 N. Y. Supp. 93; Anderson v. McNeely. 120 App. Div. 676 ; People v. MeClellan, 53 Misc. Rep. 469 ; Palmer v. Van Deusen, 122 App. Div. 282; Smythe v. Cleary, 127 id. 555; Friedman v. Denousky, 122 id. 258; Babcock v. Anson, Id. 73; Citizens' Central Nat. Bank v. Munn, 49 Misc. Rep. 319; Mullen v. Hall, 51 id. 59; Pigone v. Lauria, 100 N. Y. Supp. 976. Dismissal not proper remedy.] The remedy for uncertainty in a com- plaint is not dismissal, but motion to make more definite and certain. (Palmer T. Van Deusen, 122 App. Div. 282.) I A ffidavit improper.] Facts as to complaint are to be ascertained by the court on an inspection of it, and an affidavit to that effect is improper. Deubert v. City of New York, 126 App. Div. 359. TIME — Motion, when made.] A motion to strike out irrelevant matter must be made before demurring or answering, and within twenty days from the service of the pleading. (New York Ice Co. v. Northwestern Ins. Co., 21 How. Prac. 234 [Sp. T. 1861] ; S. C, 12 Abb. 74; Roosa v. Saugerties & Wood- stock Turnpike Co., 8 How. Prac. 237 [Sp. T. 1853] ; Barber v. Bennett, 4 Sandf. 705 [Sp. T. 1852] ; Siriani v. 'Deutsch, 12 Misc. Rep. 213 [Supr. Ct. Sp. T. 1895].) Within what time.] Wlien the right to make such a motion is waived by procuring an extension of the time to answer or demur. (Brooks v. Han- chett, 36 Hun, 70 [1885].) 156 OouETS OF Eecoed. [Rule 22 InsufScient time.] If the notice is not served in time, the party desir- ing the benefit of that fact must show it. (Eoosa v. Saugerties & Woodstock Turnpike Co., 8 How. Prac. 237 [Sp. T. 1853]; Barber v. Bennett, 4 Sandf. 705 [Sp. T. 1862]; contra, Rogers v. Rathbone, 6 How. Prac. 66 [Sp. T. 1851].) Not at earliest possible moment.] A motion to make a pleading more definite and certain need not be made at the earliest possible moment. Where the time " to plead or otherwise move " has been extended, the motion may be made before the expiration of the extension. ( Hammond v. Earl, 5 Abb. N. C. 105 [Sp. T. 1878].) Within twenty days from the service of an amended pleading. (Walker V. Granite Bank, 1 Abb. [N. 'S.] 406 [Sp. T. 1865].) After lapse of a year from time of service of pleading, a motion to strike out parts of it comes too late. (Barber v. General Asphalt Ck)., 125 App. Div. 412.) Before the cause has been noticed for trial. (Kellogg v. Baker, 15 Abb. 286 [Sp. T. 1862]; Esmond v. Van Benschoten, 5 How. Prao. 44 [Sup. T. 1850].)) Motion to strike out cannot be made at the trial.] A motion to strike out irrelevant or redundant matter cannot be made at the trial. (Simmons V. Eldridge, 19 Abb. 296 [Gen. T. 1865]; S. C, 29 How. Prac. 309; Smith v. Countryman, 30' N. Y. 655 [1864].) Time when paper served by mail.] If answer is served by mail plain- tiff has forty days within which to move to make the answer more definite and certain. (Borsuk v. Blauner, 93 App. Div. 306.) WAIVER — Service of an answer.] An answer served after notice to strike out irrelevant matter in the complaint, waives the motion. (Goch v. Marsh 8 How. Prac. 439 [Sp. T. 1853] ; Dovan v. Dinsmore, 20 id. 503 [G^n. T. I860]; King v. Utica Ins. Co., 6 id. 485 [Sp. T. 1852].) • Extension of time to answer.] An extension of the time to answer is a waiver of all objections to the complaint, and a bar to a motion to strike out irrelevant matter, unless the right to make the motion is expressly given. (Marry v. James, 34 How. Pr. 238 [Sp. T. 1857]; Bowman v. Sheldon, 5 Sandf. 657 [Sp. T. 1852].) Stipulation, when not a waiver.] A stipulation extending the time for defendant to answer, and to malce such application as he should be advised, embraces a motion to strike out portions of the complaint. (Lackey v. Van- derbilt, 10 How. Prac. 155 [Sp. T. 1854].) What is not a waiver of a failure to serve notice in time.] The reten- tion, by an attorney, of a. notice of motion to strike out of a pleading matter alleged to be irrelevant, redundant or scandalous, served on him more than twenty days after service of the pleading to which it relates, is not a waiver of the failure to serve the notice within such twenty days, as required by Rule 22 of the General Rules of Practice. (Gibson v. Gibson, 68 Hun, 381 [1893].) NOTICE — Contents of.] The irrelevant or redundant matter should al- ways be clearly pointed out by the moving party. ( Bryant v. Bryant, 2 Rob. 612 [Sp. T. 1863] ; Blake v. Eldred, 18 How. Prac. 240 [Sp. T. 1858] ; Bene- dict V. Dake, 6 id. 352 [Sp. T. 1851].) Eule 23] G-ENEKAL Rules of Practice. 157 Defects — specifying in motion papers.] The motion papers must point out the defects alleged. (Rathbun v. Markham, 43 How. Prac. 271 [Sp. T. 1872].) Of the motion — irrelevant matter stricken out on motion for f rivolous- ness.] On a motion for judgment on the ground of frivolousness, and for other relief, irrelevajit matter may be stricken out. (Thompson v. Erie Eail- road Co., 45 N. Y. 4&8 [1871].) RES AD JUDICATA — Denial to one defendant, not a bar to the application of another defendant.] The denial of the motion of one defendant is not a bar to a similar motion by another defendant. (Xew Jersey Zinc Co. v. Blood, 8 Abb. 147 [Sp. T. 1859].) A denial of a motion is not a bar to an action. (Howell v. Mills, 53 N. Y. 322 [1873].) DISCRETIONARY —Appeal to discretion, after a denial as a right.] An application may be made to the discretion of the court after a denial of a motion made on the ground of an absolute right thereto. (Hall v. Emmons, 9 Abb. [N. S.] 370 [Court of Appeals, 1870].) The striking out of irrelevant and redundant allegations is discretion- ary. (Town of Essex v. N. Y. & C. R. R., 8 Hun, 361 [1867].) APPEAL — Lies from an order denying the motion.] An appeal lies from an order denying a motion to have tlie complaint made more definite and certain. (Arietta v. Morrissey, 1 Abb. [N. S.] 439 [Gen. T. 1866].) Appeal from order striking out irrelevant matter — the complaint ad- judged bad on demurrer.] An appeal from an order striking out a portion of a complaint as irrelevant and redundant fails, where the complaint is adjudged bad "Upon a demurrer while the appeal is pending. (Ellison v. Sunj Printing & Publishing Assn., 41 App. Div. 594 [1899].) STAY — Stay of proceedings pending an appeal.] The proper method of suspending the operation of an order to make a pleading more definite, pending the appeal, is by a stay of proceedings, and not by an extension, of the time for an amendment. (Culver v. Hollister, 17 Abb. 405 [Gen. T. 1864]; S. C, 29 How. Prac. 479.) In what case it may be granted.] A stay of proceedings may be granted pending an appeal suspending the operation of an order striking out a portion of a pleading. (Culver v. HolUster, 17 Abb. 405; S. C, 29 How. Prac. 475 [Gen. T. 1864].) RULE 23. AfSdavits of Merits. All motions for relief to which a party is not entitled as matter of right shall be made upon papers showing merits, and the good faith of the prosecution or defense, which may be shown by any proof that shall satisfy the court. Eule 21 of 1858, amended. Eule 29 of 1871, amended. Rule 29 of 1874. Eule 23 of 1877. Rule 23 of 1880. Rule 23 of 1884. Eule 23 of 1888. Eule 23 of 1896. Rule 23 as amended, 1910. 158 CouETS OF Eecokd. [Eule 23 CODE OF CIVIL PROCEDURE. § 980. Inquest cannot be taken for want of an affidavit of merits, where the answer is verified. See Rule 28. INQUESTS — Not applicable to equity actions.] The rule which authorizes inquests, where no affidavit of merits is made, is not applicable to equity actions. (Devlin v. Shannon, 8 Hun, 531 [1876].) AFFIDAVIT — Proper form.] As to the proper form of an afiidavit of merits. (See Cannon v. Titus, 5 Johns. 355 [1810]; Swartwout v. Hoage, 16 id. 3 [1819].) As to counsel.] A failure to state that a counsel whose advice is sworn to is the counsel of the defendant in the action in which the affidavit is made is fatal. (State Bank of Syracuse v. Gill, 23 Hun, 40 [1881].) " On the merits."] The words " on the merits " are essential. (Meeeh V. Calkins, 4 Hill, 534 [1842]; Jackson v. Stiles, 3 Caines, 93 [1805]; contra, Briggs V. Briggs, 3 Johns. 449 [1808].) Advice of counsel must be sworn to.] (Swartwout v. Hoage, 16 Johns. 3 [1819]; Bruen v. Merrill, 3 Caines, 97 [1805].) Belief in advice.] Belief in the advice of the counsel is not sufficient. (Brittan v. Peabody, 4 Hill, 61 [1842]; and see note to this case.) " Fully and fairly stated his case," or " this case."] The affidavit must state that the party " has fully and fairly stated his case," or " this case," to his counsel. (Onondaga Bank v. Shepherd, 19 Wend. 10 [1837]; Bleecker v. Storm, 2 How. Prac. 161 [Sp. T. 1846]; Cary v. Livermore, Id. 170 [Sp. T. 1846]; Brownell v. Marsh, 22 Wend. 636 [1840]; Brown v. Masten, 2 How. Prac. 187 [Sp. T. 1846] ; and the name of the counsel. Bowman Cycle Co. V. Dyer, 23 Misc. Rep. 620 [1898]; Gall v. Hutchinson, 26 id. 1 [1899].) " The facts of his case."] That he has fully, etc., stated " the facts of this case" is sufficient. (Jordan v. Garrison, 6 How. Prac. 6 [Sp. T. 1851].) "The facts of his case" is insufficient. (Fitzhugh v. Truax, 1 Hill, 644 [1841], contra.) "A good and substantial defense to the bond," insufficient.] (Meech v. Calkins, 4 Hill, 534 [Sup. Ct. 1842].) " His case in this cause," insufficient.] (Ellis v. Jones, 6 How. Prac. 296 [Sp. T. 1851].) Defense " to said action for conversion," insufficient.] (Gold v. Hutchin- son, 26 Misc. Rep. 1 [1899].) "A good and valid defense to the whole of the plaintifi's claim as set forth in said complaint, upon the merits thereof," insufficient.] (State Bank of Syracuse v. Gill, 23 Hun, 406 [1881].) "A defense in the action," insufficient.] (McMurray v. GiflFord, 1 How. Prac. 14 [Chamb. 1850].) " His defense."] That he has fully, etc., stated " his defense," insuffi- cient. (Tompkins v. Acer, 10 How. Prac. 309 [Sp. T. 1854]; Richmond v. Cowles, 2 Hill, 359 [1842]; Brownell v. Marsh, 22 Wend. 636 [1840].) Eule 24] General Rules of Practice. 159 "The facts of his defense," insufficient.] (Eickards v. Swetzer, 3 How. Prac. 413 [Sp. T. 1819]; S. C, 1 Code Eep. 117.) " Has a defense."] A statement that he has a defense to the declara- tion held insufficient. (Howe v. Hasbrouck, 1 How. Prac. 68.) Facts come to his knowledge.] The facts of the case, so far as they had come to his knowledge, and he believes them to exist, insufficient.. (Brown v. St. John, 19 Wend. 617.) Affidavit of attorney.] In the absence of the party, an attorney may make the aiKdavit. (Geib v. Icard, 11 Johns. 82 [18U]; Philips v. Blagge, 3 id. 141 [1808].) Affidavit of agent.] An agent specially authorized to defend. (John- son V. Lynch, 15 How. Prac. 199 [Sp. T. 1857].) Reason to be stated.] The reason why the party does not make the affidavit must be stated. (Roosevelt v. Dale, 2 Cow. 581 [Gen. T. 1824]; Mason v. Bidlemon, 1 How. Prac. 62 [Sp. T. 1844] ; Davis v. Solomon, 25 Misc. Rep. 695 [1899].) Absence from the State.] Absence from the State is a good excuse for the affidavit not being made by the party. (Johnson v. Lynch, 15 How. Prac. 199 [Sp. T. 1857].) Affidavit by maker — how far available to the indorser.] How far the affidavit of the maker of a note is available to the indorser. (President, etc., of Ontario Bank v. Baxter, 6 Cow. 395 [Gen. T. 1826]; Clark v. Parker, 19 Wend. 125 [1838].) Default — not opened without affidavit.] An order opening a default is fatally defective where no affidavit of merits is presented, and will be set aside. (Thornall v. Turner, 23 Misc. Rep. 363 [1898 Appellate Term]; Davis v. Solo- mon, 25 id. 695 [1899]; Maguire v. Maguire, 75 App. Div. 534 [1902].) See Haberstitch v. Fischer, 67 How. Prac. 318; Beglin v. People's Trust Co., 48 Misc. Rep. 494. See notes under Rule 28. RULE 24. Affidavit for Order Extending Time. No order extending a defendant's time to answer or demur, or tlie plaintiff's time to reply to a counterclaim, stall be granted, unless the party applying for such, order presents to the judge to whom 'the application is made an affidavit of the attorney or counsel retained to defend the action that from the statement of the case made to him by the defendant he verily believes that the defendant has a good and substantial defense upon the merits to the cause of action set forth in the complaint, or to some part thereof, or an affidavit of the attorney or counsel for the plaintiff, that from the statement of the case made to him by the plaintiff he verily believes that the plaintiff has a good and substantial defense upon the merits to the cause of action set forth as a 160 Courts of Eecoed, [Rule 24 counterclaim, or to some part thereof, as the case may be. The affidavit shall also state the cause of action and the relief de- manded in the complaint and, where a counterclaim has been inter- posed, the cause of action alleged as a counterclaim and the relief demanded in the answer ; and whether any and what extension or extensions of time to answer, demur or reply by stipulation or order have been granted. When the time to serve any pleading has been extended by stipulation or order for twenty days, no further time shall be granted by order, except upon two days' notice to the adverse party of the application for such order. Rule 22 of 1858, amended. Rule 30 of 1871, amended. Rule 30 of 1874, amended. Rule 24 of 1877. Rule 24 of 1880. Rule 24 of 1884. Rule 24 of 1888, amended. Rule 24 of 1896. Rule 24 amended, 1910. CODE OF CIVIL PROCEDURE. % 781. The time within which a proceeding in an action is prescribed to be taken, may be enlarged. § 782. The affidavit upon which the order was obtained must be served with it. I 783. Relief may be granted after the expiration of the time within which a proceeding should have been taken. §§ 784, 785. When the time cannot be extended. § 2089. Enlarging time to make return, etc., in mandamus proceedings. AFFIDAVIT NECESSARY —An order extending the time to answer.] When procured without the affidavits required by this rule it is irregular. (Graham T. Pinekney, 7 Rob. 147 [Sp. T. 1867]; Ellis v. Van Ness, 14 How. Prac. 313 ISp. T. 18571.) DEMURRER — After an order extending the time to answer is irregular.] After an order has been obtained extending the time to answer, it is irregular for the defendant to demur. (Davenport v. Sniffin, 1 Barb. 223 [Sp. T. 1847].) STRIKING OUT — ^A pleading — motion for, by what extension authorized.] An extension of the time to answer and make such application as defendant should be advised authorizes a motion to strike out a portion of the pleadings. (Lackey v. Vanderbilt, 10 How. Prac. 155 [Sp. T. 1854]..) ADDITIONAL TIME— When it commences to run.] An order granting additional time does not commence to run until the time thereby extended has expired. (Schenck v. McKie, 4 How. Prac. 246 [Sp. T. 1849]; S. C, 3 Code Rep. 24; Pattison v. O'Connor, 23 Hun, 307; Mercantile Nat'l Bank v. Corn Exch. Bank, 68 Hun, 95.) Seven days' time — when it commences to run.] An order granting " seven daya' time to plead " commences to run from the date of the order. (Simpson v. Cooper, 2 Scott, 840.) Eule 25] General Rules of Peactice. 161 MaiUng of order on the last day, sufficient.] If the order extending the time to answer is mailed on the last day it is sufficient. (Schuhardt v. Both, 10 Abb. 203 [Sp. T. I860].) When rule does not apply.] Rule 24, providing in regard to the date of issue, -where an extension of time has been given, does not apply to a case where the plaintiff has served a notice of trial on the last day left to him, but six hours before defendant served by mail his answer. (Wallace v. Syra- cuse, B. & N. N. R. R. Co., 27 App. Div. 457 [1898].) WAIVER — Of right to have the complaint amended.] An application for further time to answer is a waiver of a right to have the complaint amended. (Bowman v. Sheldon, 5 Sandf. 6U2 [Gen. T. 1852]; S. C, 10 N. Y. Leg. Obs, 339; Marry v. James, 34 How. Prae. 238 [Sp. T. 1857].) LACHES — Of court — party not injured by.] If the concurrence of the court is necessary to the doing of an act, the party will not be affected by its delay; and if its decision be after the time for doing the act is passed it may be entered as of an earlier date. (C'lapp v. Graves, 9 Abb. 20 [N. Y. Com. PI. Gen. T. 1859]; S. C, 2 Hilt. 317; 26 N. Y. 418.) Of attorney.] An order extending the time to answer will not be granted where the party has been guilty of gross laches. (Hays v. Berryman, 6 Bosw. 679 [Sp. T. I860].) TIME — Statutory Construction Law — computation of time.] The Statu- tory Construction Law, as amended by Laws of 1894, chapter 447, changes the general rule as to the computation of time by days, weeks and months, and provides that the day from which it is made shall be excluded; but the rule as to years remains as before, and includes the day from which it is made. (Aultman & Taylor Co. v. Syme, 91 Hun, 632 [1895].) Computation of time.] An act which is required to be done more than fourteen days " before " March sixteenth may be lawfully done on March sec- ond. (People V. Burgess, 153 N. Y. 561 [1897].) Fractions of a day.] The law does not regard fractions of a day except when the hour itself is material. (Marvin v. JIarvin, 75 N. Y. 240 [1878].) A week.] A week is a definite period of time commencing on Sunday and ending on Saturday. (Steinle v. Bell, 12 Abb. Prac. [N. S.] 171.) " Month " and " day " defined.] The word " month " when used in a stat- ute means a calendar month, and the word " day " means the space of time between two midnights. (People v. Nash, 12 IST. Y. Wkly. Dig. 545 [Gen. T. 1881]. See Laws of 1892, chap. 677, §§ 26, 27.) Order extending time may be ex parte — when properly granted.] An order extending the time to answer may be made ex parte, where the time has not expired, and is properly granted in case a motion to consolidate two actions is pending. (Condon v. Church of St. Augustine, 14 Misc. Rep. 181 [1895].) EITLE 25. Ex Parte Application — Statements as to Previous Application. Whenever application is made ex parte on affidavit to a judge or court for an order, the affidavit shall state whether any previous 11 162 CouETs OF Eecoed. [Rule 25 application has been made for such order, and, if made, to what court or judge and what order or decision was made thereon, and what new facts, if any, are claimed to be shown. Tor failure to comply with this rule, any order made on such application may be revoked or set aside. This rule shall apply to proceedings supple- mentary to execution, and to every application for an order or judgment made in any action or special proceeding. Rule 23 of 1858. Rule 31 of 1871, amended. Rule 31 of 1874, amended. Rule 25 of 1877. Rule 25 of 1880. Rule 25 of 1884, amended. Rule 25 of 1888, amended. Rule 25 of 1896. CODE OF CIVIL PEOCEDUEE. § 776. Subsequent applications for an order, after a denial of a prior appli- cation therefor. § 777. Application for judgment caimot be withdrawn without permission — second application, what must be stated in. § 778. Persons violating the last two sections punished for contempt. § 1892. Application for leave to sue official bond may be ex parte. PEEVIOUS APPLICATION — Fact as to, must be stated in supplementary proceedings.] An affidavit to maintain an order for the examination of a judgnient-debtor in supplementary proceedings must comply with this rule. (Diossy V. West, 1 Monthly L. Bulletin [N. Y.], 23 [N. Y. Com. PI. December, 1878].) Effect of its not being stated.] The failure to state that no previous application has been made, is an irregularity which does not compel the court to refuse to grant the order, or to vacate it after it has been granted. (Bean v. Tonnelle, 24 Hun, 353 [1881]; Pratt v. Bray, 10 Misc. Rep. 445 [1894]; Skinner v. Steele, 88 Hun, 307 [1895]; Matter of National Gramo- phone Corp., 82 App. Div. 593 [1903].) Only an irregularity.] Where an order directing the examination of the defendant before trial has been vacated by reason of the insufficiency of the papers upon which the application was made, the failure of the plaintiff upon his second application for an order directing such examination to comply fully with the provisions of Rule 25, by showing what new facts are claimed to be shown on the second application or whether or not there are any new facts, is at most an irregularity and does not compel the court to refuse the order or to vacate it after it is granted. (Skinner v. Steele, 88 Hun, 307 [1895].) Order may still be granted.] An order to show cause may be granted upon affidavit, after a hearing, even if the affidavit does not state that no previous application has been made for such order. (Wooster v. Bateman, 4 Misc. Rep. 431 [N. Y. Supr. Ct. 1893].) Order for examination before trial will be vacated where moving papers do not show that no previous application for the order has been made. ( Mitchell V. Green, 121 App. Div. 677.) Kule 26] General Eules of Peactice. 163 As to what is a renewal, see Harris v. Brown {93 N. Y. 390). Application to correct order should be made before judge who heard motion. (Dinkelspiel V. Levy, 12 Hun, 130.) RENEWAL — Leave to renew was formerly unnecessary.] When the appli- cation is made ex parte to a judge, or a justice out of court upon affidavits, leave to renew is not necessary. (Belmont v. Erie R. R. Co., 52 Barb. 637- 643 [Sp. T. 1869].) Omission to enter order.] The omission to enter an order does not justify a new application. (Peet v. Cowenhoven, 14 Abb. 56 [Chamb. 1861]; Hall V. Emmons, 2 Sweeny, 396 [N. Y. Supr. Ct. Gen. T. 1870].) RES ADJUDICATA — Decision on a motion is not.] A denial of a motion is no bar to an action. (Howell v. Mills, 53 N. Y. 322 [1873].) feee notes under Rule 37. EULE 26. Judgment on Failure to Answer, where it May be Applied for — First District. When the plaintiff in an action in the Supreme Court is entitled to judgment upon the failure of the defendant to answer the com- plaint, and the relief demanded requires application to be made to the court, such application may be made at any Special Term in the district embracing the county in which the action is triable, or, except in the first district, in an adjoining county; such applica- tion, except in the first judicial district, may also be made at a Trial Term in the county in which the action is triable. When a reference or writ of inquiry shall be ordered, the same shall be executed in the county in which the action is triable, unless the court shall otherwise order. In the first judicial district, every motion or application for an order or judgment where notice is necessary, must be made to the Special Term for the hearing of motions, and where notice is not necessary, to the Special Term for the transaction of ex parte business, except where other pro- vision is expressly made by law, or the general or special rules of practice. In the county of Kings all such applications shall be made at the Special Term for the hearing of motions. Any order or judgment granted in violation of this provision shall be vacated by the Special Term at which the application should have been made, or by the Appellate Division of the Supreme Court; and no order or judgment granted in violation of this rule shall be entered by the clerk. Rule of 1858. Rule 33 of 1871, amended. Rule 33 of 1874. Rule 26 of 1877, amended. Rule 26 of 1880, amended. Rule 26 of 1884. Rule 26 of 1888, amended. Rule 26 of 1896. 164 CoTjKTS OF Eecoed. [Kule 26 CODE OF CIVIL PROCEDURE. § 419. If a copy complaint or notice be not served with the summons, the plaintiff cannot take judgment without application to the court. § 420. Judgment may be taken without application to the court — when. § 636. Reference on default in certain actions for tort — defendant m.ay prove mitigating circumstances. § 1212. Judgment by default, bow taken. % 1213. Amount, how determined. § 1214. Application to the court for judgment by default — when necessary. § 1215. Proceedings on such application. I 1216. Application for judgment by default in cases other than where the summons was personally served. § 1217. Attachment and undertaking for restitution required in certain actions. § 1218. A judgment cannot be taken against an infant till twenty days after appointment ef guardian ad litem. % 1219. When and of what proceedings defendant in default is entitled to notice. § 1526. Effect of a judgment by default, in an action of ejectment. § 1545. Duty of court in case of a default in an action for partition. ■§ 1605. Recovery of dower against an infant by collusion or default of guardian does not prejudice its rights. % 1635. Payment into court after judgment in foreclosure of a part of the amount secured by the mortgage is rendered — ■ proceedings on sub- sequent default. I 1645. Judgment by default in an action to determine claims to real property. § 1729. Judgment by default in an action of replevin — damages how ascer- tained. I 1753. Judgment annulling marriage not to be rendered by default, without proof, etc. § 1757. Judgment not to be taken by default in an action for divorce, without proof. § 1774. Regulations concerning judgments by default, in matrimonial actions. DEFAULT — Practice where only part of the defendants are in default.] Proper practice where there are several defendants, some of whom appear and others of whom are in default. {Lyon v. Yates, 61 N. Y. 661 [1875]; Catlin V. Billings, 13 How. Prac. 511 [Sp. T. 1857]; S. C, 4 Abb. 248.) What notice sufficient to justify entry of judgment.] A notice that a judgment will be taken for a sum specified " with interest " from a day named, is sufficient to justify the entry of a judgment in a case in which the com- plaint is not served. (Swift v. De Witt, 1 Code R. 25 [Gen. T. 1848]; S. C, 6 N. Y. Leg. Obs. 314; 3 How. Prac. 280.) What defendant concedes by his default, and his rights thereafter. (Bassett v. French, 10 Misc. Rep. 672 [1895].) Eule 27] GswEEAL Eules of Peactice, 165 What notice is sufficient.] (Mason v. Corbin, 29 App. Div 602 [1898].) Judgment on default — not more favorable than asked for.] Where there is no answer, the judgment entered in the action should not be more favorable to the plaintiff that that demanded in the complaint. (Harrison V. Union Trust Co. of New York, 144 N. Y. 326. See, also, McVity v. Stanton, 10 Misc. Rep. 105 [1894].) A report must be made and filed on a reference.] If a reference be ordered a report must be made a.nd filed. (Am. Ex. Bk. v. Smith, 6 Ahb- 1 [N. Y. Sup. Ct. Gen. T. 1857].) Order of default — not necessary.] An order of default need not be entered on a failure to answer. (Watson v. Brigham, 3 How. Prac. 290 [Sp. T. 1848].) Proper form of notice of assessment of damages.] (Kelsey v. Covert, 15 How. Prac. 92 [Sp. T. 1857]; S. C, 6 Abb. 236, n.) Application when proper at Trial Term.] When, in a proceeding for the substitution of an attorney in two pending suits, the judge at Special Term, after hearing the motion, refers the matter to a referee to take proof and report what sum is due to the attorney sought to be removed and directs the application to stand over for further consideration until the referee shall make his report, it is not improper practice to notice the motion for the con- firmation of such report for a Trial Term at which the same judge who held the Special Term is then sitting. Eule 26 is not applicable under such cir- cumstances. (Hinman v. Devlin, 40 App. Div. 234 [1899].) When time to answer is extended.] When the time of a defendant to answer is entended by order, plaintiff cannot take judgment until the time to answer as extended has expired. (Littauer v. Stern, 177 N". Y. 233.) As to References, see notes under Rule 30. In general.] Notice that judgment will be taken for certain Bxan with interest from certain date, sufficient. Clerk cannot enter judgment for unliqui- dated damages without order of court. (Matter of Scharrmann, 49 App. Div. 278; Bullard v. Sherwood, 85 N. Y. 253, revg. 22 Hun, 462.) What proof admissible under plea of justification. (Lampher v. Clark, 149 N. Y. 472.) May plead facts arising subsequent to commencement of action. (Gabay v. Doane, 66 App. Div. 507. See Bradner v. Faulkner, 93 K Y. 515; Gressman v. Morning Journal Assn., 197 id. 474.) Remedy for default is by motion to open. (Hawkins v. Smith, 91 Hun, 299.) Whether proof shall be taken at separate time is a matter of practice. (Lyon V. Yates, €1 N. Y. 661.) Omission to apply to court is an irregularity and judgment is not void- (Bissell V. N. Y. C. & H. R. R. Co., 67 Barb. 385.) UTILE 27. Orders Granted on Petitions — Recitals in — May be Docketed as Judgments. Orders granted on petitions, or relating thereto, shall refer to such petitions by the names and descriptions of the petitioners. 166! CouETs OF Eecoed. [Eule 27 and the date of the petitions, if the same be dated, without reciting or setting forth the tenor or substance thereof unnecessarily. Any order or judgment directing the payment of money, or affecting the title to property, if founded on petition, where no complaint is filed, may, at the request of any party interested, be enrolled and docketed, as other judgments. Rule 56 of 1858. Rule 35 of 1871. Rule 35 of 1874. Rule 27 of 1877. Rule 27 of 1880. Rule 27 of 1884. Rule 27 of 1888. Rule 27 of 189ii. CODE OF CIVIL PEOCEDUEE. § 15. No punishment for nonpayment of interlocutory costs — ^ except'when ordered to be paid for misconduct. (See Civil Eights Law, § 20.) § 16'. Orders for payment of money on contract — disobedience to, not pun- ishable by arrest. (See Civil Eights Law, § 21.) § 779. CJosts directed to be paid by an order, if not paid in ten days, pro- ceedings to be stayed — costs to abide event — taxed as part of the costs of the action. § 1730. When final judgment in replevin to be docketed. § 1816. Docket of judgment against an executor individually and in his rep- resentative capacity. § 2550. Docket of final order awarding costs in summary proceedings to recover land. § 2379. Docket of judgment on awaxd of arbitrators. § 2553. Docket of decree of surrogate for the payment of money. § 3247. Costs in case of transfer of cause of action. ATTORNEY'S FEES — Docket of order for, improper.] Rule 27 does not permit an order fixing the value of attorney's services, rendered to a party to an action, to be docketed as a judgment. (Myer v. Abbett, 20 App. Div. 390 [1897].) JUDGMENT — Entry of, in a special proceeding.] The final order in a special proceeding cannot be the basis of a separate and independent judgment. (Matter of Lexington Avenue, 30 App. Div. 602 [1898, affd., 157 N. Y. 678.) See notes under Rule 37. Execution may issue to collect alimony.] (Lansing v. Lansing, 4 Lans. 379 [Gen. T. 1871]; S. C, 41 How. Prao. 248; Miller v. Miller, 7 Hun, 208 [1876]. (See Howe v. Howe, 5 Wkly. Dig. 460 [N. Y. Com. PI. Sp. T. 1878]; Ramppen v. Ramppen, 1 L. Bulletin, 11 [Sp. T. 1878].) Also to collect money directed to be paid from a trust fund.] (Randall V. Dusenbury, 9 J. & S. 456 [N. Y. Supr. Ct. Gen. T. 1876].) Enforcement of a judgment against a dissolved corporation.] (Hast- ings v. Drew, 50 How. Prac. 254 [Sp. T. 1874].) A receiver may enforce by execution a judgment between other parties which requires money to be paid to him.] (Geery v. Geery, 63 N. T. 252 [1875].) Kule 28] General Rules oe Peaotice. 167 CONTEMPT — Order not enforcible by execution, may be by proceedings for contempt.] Disobedience may be punished as a contempt where the judg- ment or order cannot be enforced by execution. (OGara v. Kearney, 77 N. Y. 423 [1879].) RUIE 88. Inquests May be Taken, When. Eule 28 repealed, 1910. CODE OF CIVIL PROCEDURE. § 980. Inquest cannot be taken where the answer is verified. See notes under Rule 23. APPEARANCE — By defendant, though no affidavit filed.] When a cause is called in its regular order on the calendar, the defendant has a right to appear, though no aflBdavit of merits has been filed. (Starkweather v. Cars- well, 1 Wend. 77 [1828].) TRIAL — Before the court.] The trial must be before the court, or the court and a jury; the case cannot be sent to a sheriff's jury. (Gilberton v. Fleischel, 5 Duer, 652 [Sp. T. 1856]; Dolan v. Pelly, 4 Sandf. 673 [1851].) Plaintiff must prove his case, if there be an answer.] Where the de- fendant has answered, the plaintiff must prove the allegations denied. (Patten v. Hazenell, 34 Barb. 421 [Gen. T. 1861].) Defendant may examine plaintiff's witnesses.] The defendant may ex- amine plaintiff's witnesses for the purpose of controverting the plaintiff's proof, but not for the purpose of showing a substantive defense. {Kerk«r v. Carter, 1 Hill, 101 [Sup. Ct. 1841]; Hartness v. Boyd, 5 Wend. 563 [1830].) Counterclaim not replied to must be allowed.] If a counterclaim be set up and it is not replied to, it must be allowed. (Potter v. Smith, 9 How. Prac. 262 [Sp. T. 1854].) Inquest not proper after discharge of the jury.] An inquest cannot be taken after the discharge of the jury. (Haines v. Davis, 6 How. Prac. US [Sp. T. 1851]; S. C, 1 Code E. [N. S.] 407; Dickinson v. Kimball, 1 Code R. 83 [Sp. T. 1848].) WHEN SET ASIDE — Because of unexpected absence.] When an inquest will be set aside because of the unexpected absence of one of the defendant's material witnesses. The right to do so is not affected by the fact that the trial court refused to postpone the trial. (Cahill v. Hilton, 31 Hun, 114 [1883].) REVIEW — How obtained — judgment taken on an inquest must be re- ceived by motion and not by appeal.] Where a judgment has been entered upon findings made and filed, after an inquest taken at a Circuit, on the fail- ure of the defendant to appear, the remedy of the defendant is by motion to set aside the judgment, and not by appeal. ( Greenleaf v. Brooklyn, etc., Rail- road Company, 37 Hun, 435 [1885] ; affd., Greenleaf v. B., etc., E. Co., 102 N. Y. 96.) SERVICE OF AFFIDAVIT OF MERITS — Affidavit must be served before ■first day of term.] The affidavit must be filed and served before the first day of the Circuit. (Baker v. Ashley, 15 Johns. 536 [1818].) ; 168 CouETs OF Eecoed. [Eule 29 On second day.] Where an affidavit of merits is not filed until the second day of the Circuit, it must be so served as in all probability to bring its service to the knowledge of plaintiff's attorney before an inquest is taken. (Smith v. Aylesvirorth, 24 How. Prae. 33 [Gen. T. 1862] ; Brainard v. Hanford, 6 Hill, 368 [1854].) VERIFIED PLEADING — No inquest.] No inquest can be taken in any ease for want of an affidavit of merits where the answer is verified. ( Code of Civil Procedure, § 980.) EQUITY CASES — Eule not applicable to.] This rule does not apply to equity cases. (Devlin v. Shannon, 8 Hun, 531 [1876].) RULE 29. Opening of Counsel and Examination of Witnesses and Summing Up. In the trial of civil causes, unless the justice presiding or the referee shall otherwise direct, each party shall open his case before any evidence is introduced, and, except by special permission of the court, no other opening by either party shall thereafter be permitted. On the trial of issues of fact, one counsel only on each side shall examine or cross-examine a v^itness, who shall not repeat the answer or answers of such witness at the time he shall be under examination. One counsel only on each side shall sum up the cause, and he shall not occupy more than one hour, and the testi- mony, if taken down in writing, shall be written by some person other than the examining counsel; but the judge who holds the court may otherwise order, or dispense with this requirement. While addressing the court, examining witnesses or summing up, counsel shall stand. Eule 30 of 1858. Eule 37 of 1871. Eule 37 of 1874. Eule 29 of 1877. Eule 29 of 1880. Eule 29 of 1884, amended. Eule 29 of 1888, amended. Eule 29 of 1896. Eule 29 as amended, 1910. OPENING AND CLOSING CASE — A legal right.] The right of a party holding the affirmative to open and close the case is a legal right. (Millerd V. Thorn, 56 N". Y. 402 [1874]; Murray v. N. Y. Life Ins. Co., 85 id. 236 [1881].) Right to open and close, a substantial one.] The privilege the party having the affirmative of the issues in an action has of opening and closing the case on trial is founded upon a substantial right, the denial of which, unless it be made to appear that he could not have been injured thereby is error. (L. 0. N. Bank v. Judson, 122 N. Y. 278 [1890].) Eule 29] General Eules of Peactice. 169 Test of the right.] The question as to which party has this right is to be determined by the pleadings, and the teat is whether, without any proof, plaintiff, upon the pleadings, is entitled to recover upon all the causes of action alleged in his complaint. If he is not, no matter how little proof the issue may require, if it is requisite to establish it by evidenec, plaintiff has the right to open and close the case. If he is, and defendant alleges a counterclaim, controverted by plaintiff, or sets up an affirmative matter of defense, which is the subject of trial, the defendant has that right, {lb.) Its denial requires a reversal.] A judgment will be reversed because of an error of the trial court in deciding as to which party should open and close the case. (Plenty v. Rendle, 43 Hun, 568 [1887].) Refusal to instruct a party to take the atErmative.] A refusal to in- struct the opposite party to take the affirmative affords no valid ground for an exception. (Clark v. Smith, 9 Misc. Rep. 164 [N. Y. Com. PI. Gen. T. 1894].) Error in allowing the affirmative, cured.] An error in allowing the plaintiff the affirmative of the issue may be cured by his consent and offer to allow defendant the final summing up. (Lake Ontario Nat. Bank v. Judson, 33 N. Y. St. Rep. 371 [1890]; S. C, 122 N. Y. 638.) "When the question of relative right should be presented.] A request on the trial to the court to state the order in which counsel shall present the case to the jury, can only be made after the whole evidence has been presented. (Mead v. Shea, 92 N. Y. 122 1883].) Right, how determined.] The question as to the right to the affirma- tive is to be determined upon the state of the pleadings when the case comes to trial. (Kolbe v. Price, 14 Hun, 55 [1878]. See Gilland v. Lawrence, 13 N. Y. Wkly. Dig. 372 [1881].) Defendant must claim the affirmative upon the trial of the action.] Where the plaintiff has the affirmative upon the pleadings and the defendant does not claim it upon the trial, it is not error to deny the defendant's appli- cation for the affirmative in summing up. (Crawford v. Tyng, 7 Misc. Rep. 239 [N. Y. City Ct. 1894].) Issues under which plaintiff has the affirmative.] When, in an action brought to recover for goods sold and delivered, the answer contains a general denial of the allegations of the complaint and puts in issue the question of sale and delivery as well as that of price and payment, the plaintiff has the affirmative of the issue, and is entitled to open and close the case. (Felts v. Clapper, 69 Hun, 373 [1893].) — —Where exemplary damages are allowable, the affirmative is upon the plaintiff — what decides the right to open and close.] In an action where exemplary damages are allowable, the affirmative is upon the plaintiff. Where, in a libel suit, there is a question whether there was actual or implied malice, the affirmative is with the plaintiff, and the act of defendant's counsel in withdrawing the general denial, admitting the publication of the article and standing on justification and privilege and mitigation, will not give him the right to open and close. The question as to who should have the right to open and close, should be decided upon the pleadings, and not upon admissions, or oral withdrawals. .(Parish v. Sun Printing & Publishing Assn., 6 App. Div. 585 [1896].) l'?^0 CouETs OF Eecoe-d. [Eule 29 Where plaintiff has right to open and close in an action for rent.] In an action for rent, where the complaint alleges that defendant had neglected and refused to pay the rent due and payable, and the answer denies said alle- gation, it is reversible error to deny plaintiff the light to open and close since he was bound to prove the nonpayment. (Trenkmann v. Schneider, 23 Misc. Eep. 336 [1898].) Issues under which the defendant has the affirmance.] In an action by the payee of a note against the maker, the answer admitted the making of the note and did not dfeny any of the allegations of the complaint and alleged affirmatively that the note was given without consideration under an agree- ment that the same was to be paid only out of the profits of a certain business that had realized no profits. Held, that a denial of the right to open and close, excepted to, was error entitling defendant to reversal of a judgment against him. (Brown v. Tausick, 1 Misc. Eep. 16 [N. Y. City Ct. 1892].) Allegations of the complaint admitted.] Where the answer admits the allegations of the complaint, and the defense was upon a counterclaim, the defendant is entitled to make the closing argument to the jury, and a denial of the privilege affects a substantial right. (Staats v. Hausling, 22 Misc. Rep. 526 [1898].) In an action for rent.] In an action for rent under a lease the com- plaint alleged the making of the lease, which provided for rent payable monthly in advance; that plaintiff had performed all the conditions of the lease, and that a certain sum was due for the month of September, which defendants refused to pay. The answer admitted the making of the lease, and that de- fendants refused to pay the amount demanded; denied all other allegations of the complaint, and set up affirmative defenses. Held, that no material alle- gation of the complaint was denied and that defendants had a right to the affirmative of the issue. (Hurliman v. Seckendorf, 9 Misc. Rep. 264 [City Ct. of Brooklyn, 1894]; S. C, 10 id. 549 [1894]; distinguished, Trenkmann v. Schneider, 23 id. 336 [1898].) Time allowed for arguments discretionary.] It is a matter of discre- tion with the court to determine what time shall be allowed in summing up under the circumstances of the case, and unless such discretion is abused the Court of Appeals will not interfere with it. (Eehberg v. The Mayor, etc., of New York, 1 Eastern Reporter, 182 [Ct. of App. 1885].) Time allowed — how objection should be taken.] Where the time allotted to defendant's counsel was thirty minutes, and to the district attorney twenty-five, and it appeared that the former was stopped by the court at the expiration of his time but the latter continued his address for five minutes more than his allotted time, when he was stopped, held, that this did not tend to establish an abuse of discretion; that the defendant's counsel had the right to ask the court to stop the district attorney at the expiration of his time, and not having done so, there was no ground for complaint. (The People v. Kelly, 94 N. Y. 526 [1884].) Counsel limited to points in issue.] Counsel will be restrained in his statements to the points in issue. (Fry v. Bennett, 3 Bosw. 201 [N. Y. Supr. Ct. 1858]; Mitchell v. Borden, 8 Wend. 570 [1832].) Eule 29] Genekal Rules of Peactice. 171 Reading a book.] It is error to allow counsel in summing up to read irom a pamphlet proved to have been issued by the defendant but not put in evidence. (Koelger v. Guardian Life Ins. Co., 57 N. Y. 638 [1874].) An exception to allowing counsel to read to the jury, as part of his argument but not as evidence, parts of a book, cannot be sustained if the case does not disclose what he reads. (Lyons v. Erie Railway Co., 57 N. Y. 492 [1874].) Reading from a law book.] In an action brought to recover a balance alleged to be due upon a contract for the sale of wrought scrap iron, a verdict was rendered sustaining a counterclaim interposed by the defendant which set •up a failure of the plaintiff to perform the written contract in which the weight and quality of the iron were guaranteed. In addressing the jury the defend- ant's counsel was allowed, against the objection and exception of the plaintiff, to read to the jury extracts from Bliss on Insurance, which state the doctrine of warranty and the necessity of strictly complying therewith, as applicable to policies of insurance. Held, that this was error, as the doctrine of warranty governing policies of insurance were not applicable to sales of chattels. That, although counsel may, perhaps, be allowed in this State to read to the jury when what is read is the law of the case and can by no possibility prejudice the adverse party, yet it is a custom more honored in the breach than in the observance, and should not be allowed as long as the jury are required to accept for their guidance the legal rules pronounced by the court. (Lesser v. Perkins, 39 Hun, 341 [1886].) Reading to the jury an opinion of the Court of Appeals.] A reversal should not be granted where an attorney reads to the jury an opinion of the Court of Appeals. (Williams v. Brooklyn Elevated R. R. Co., 32 St. Rep. 702 [Sup. Ct. 1890].) Heading from an opinion given on a former appeal is error.] The pub- lication of a libelous article was admitted. The statement therein that plaintiff was defendant, instead of complainant, in a criminal action was proved to be the error of the reporter, which was corrected in the next issue of the defend- ant's newspaper. No malice, in fact, or substantial damages were alleged or proved. lield, that it waa error to permit plaintiff's counsel, in summing up, to read an extract from an opinion on a former appeal in the case which had a tendency to induce the jury to believe that, as a matter of law, plaintiff had a right to substantial, as distinguished from nominal, compensatory damages. (Griebel v. Rochester Printing Co., 24 App. Div. 288 [1897].) Reading to the jury a newspaper article.] A new trial should not be granted where a counsel in summing up reads a newspaper article in regard to individual rights being infringed upon by corporations, such article, however, not referring to the particular company defendant, and when the counsel might have stated the substance thereof. (Williams v. Brooklyn Elevated R. R. Co., 32 St. Rep. 702 [Sup. Ct. 1890].) Interference by the court with counsel.] The interference by the court with counsel when opening a case to the jury is, as a general rule, a matter of discretion and not the subject of exception. (Walsh v. People, 88 N. Y. 458 [1882].) 172 CouBTS OF Eecoed, [Eule 29 Interruption of the summing up by the judge.] A new trial should he granted where upon the trial the judge interrupted the plaintiff's counsel when s,umming up his case before the jury, asking him to shorten his argument, and in consequence of which the counsel became confused and failed to discuss material facts. (Campanello v. N. Y. Central, etc., R. R. Co., 39 St. Rep. 445 [Buffalo Supr. Ct. 1891] ; affirmed, 39 St. Rep. 274.) Statement of counsel.] What statements of counsel, if objected to warrant reversal. (Mulligan v. Met. S. R. Co., 89 App. Div. 207; Benoit v. N. Y. C. & H. R. R. Co., 93 App. Div. 24.) Eight to open and close.] Eight is determined by the pleadings at the time of trial and cannot be altered by admissions made during course of trial. (Hollander v. Farber, 52 Misc. Rep. 507.) The refusal of the right of the defendant to close the case, where the only issue tried is on his counterclaim, held, reversible error. (Fischer v. Frohne, 51 Misc. Rep. 578.) In action for agreed price and value of work done, where answer places in issue averments relating to price and value, plaintiff has affirmative of issue. (Petzoldt Co. v. Cohn, 114 N. Y. Supp. 165. See, also, Cilley v. Pref. Ace. Ins. Co., 109 App. Div. 394.) Examining witnesses.] Practice of counsel in summing up to the jury tmder guise of asking questions and getting prejudicial and inadmissible mat- ters before the jury condemned. (Scott v. Barker, 129 App. Div. 241; Frahm V. Siegel-Cooper Co., 131 id. 747; Quigg v. Post & McCord, Id. 1.55.) Misconduct of counsel in making improper remarks and statements in summing up held cured by an instruction of the court to disregard them. (Patterson v. Heiss, 110 N. Y. Supp. 1042.) Handing exhibit to jury.] Act of plaintiff's counsel in handing exhibit to jury on its retirement, without first asking permission of the court, held immaterial and unprejudicial. (Wilson v. Faxon, Williams & Faxon, 63 Misc. Rep. 561.) Improper remarks of counsel.] See Reehill v. Fraas, 129 App. Div. 563; Freedman v. Press Publishing Co., 65 Misc. Rep. 85; Stein v. Brooklyn, Queens Co., etc., Ry. Co., 62 id. 309; Hordern v. Salvation Army, 124 App. Div. 674; Adler v. Lesser, 110 N. Y. Supp. 196; Kelsey v. City of N. Y., 123 App. Div. 381; Haigh v. Edelmeyer, etc., Co., Id. 376; Horton v. Terry, 126 id. 479; Orendorf v. N. Y. Cent. Ry. Co., 119 id. 638; Cox v. Continental Ins. Co., Id. 682; Loughlin v. Brassil, 187 N. Y. 128; Nelson v. Forty-second St., etc., R. R. Co., 55 Misc. Rep. 373.) PROOF — Order of determined by the court.] Tlie court determines as to the order of proof. (Carnes v. Piatt, 15 Abb. [N. S.] 337 [Cxeu. T. 1873]; Place V. Minster, 65 N. Y. 89 [1875]; Pollatsohek v. Goodwin, 17 Misc. Rep. 587 [1896]; Johnston v. Mutual Reserve L. Ins. Co., 90 N. Y. Supp. [124 St. Reip.] 539.) The court may limit the examination of a witness.] After a party has been permitted to examine a witness at length in reference to a transac- tion, it is in the discretion of the court to exclude further examination upon Eule 30] General Rules of Peactice. 173 the subject, and its decision is not reviewable in the Court of Appeals. (Cow- ing V. Altman, 79 N. Y. 167 [18791.) What limit may be imposed upon a cross-examination.] So far as the cross-examination of a witness relates to facts in issue or relevant facts it may be pursued by counsel as matter of right, but when the object is to test the accuracy or credibility of the witness, its method and duration are subject to the discretion of the court, and the exercise of this discretion, unless it is abused, is not the subject of review. (Langley v. Wadsworth, 99 N. Y. 61 [1885].) Cross-examination on irrelevant topics.] Inquiries on irrelevant topics to discredit a witness on his cross-examination, and the extent to which a course of irrelevant inquiry may be pursued, are matters committed to the discretion of the court, and the exercise of such discretion is not the subject of review except in the case of plain abuse and injustice. (People v. Braun, 158 N. Y. 558 [1899].) Witness to remain until the case is closed.] Right of one party to have a witness, once summoned and called to testify by his adversary, remain in court after his examination until the case is closed. (Neil v. Thorn, 88 N. Y. 270 [1882].) Reading deposition.] Where the deposition of a party, taken before trial, is read thereon and no objection is taken, he is not thereby precluded from being examined on the trial. (Misland v. Boynton, 79 N. Y. 630 [1880].) Explanation of absence of witness.] In what cases the district attor- ney will be allowed, in answer to comments of counsel for the prisoner, to explain why a witness is absent. (Blake v. People, 73 N. Y. 586 [1878].) UTILE 30, nonsuit before Referee — Referee's Report — Testimony in References Other than of Issues — Exceptions. On a hearing before a referee or referees, tlie plaintiff may submit to a nonsuit or dismissal of his complaint, or may be nonsuited, or Ms complaint may be dismissed, in like manner as upon a trial, at any time before the cause has been finally submitted to a referee or the referees for their decision ; in which case the referee or referees shall report according to the fact, and judgment may thereupon be perfected by the defendant. In references other than for the trial of the issues in an action, or for computing the amount due in foreclosure cases, the testi- mony of the witnesses shall be signed by them; the report of the referee shall be filed with the testimony, and a note of the day of the filing shall be entered by the clerk in the proper book, under the title of the cause or proceeding. At any time after the 174: CouETS OF Kegoed. [Rule 30 report is filed either party may bring on the action or proceeding at Special Term on notice to the parties interested therein. Rule 32 of 1858, amended. Rule 39 of 1871. Rule 39 of 1864, amended. Rule 30 of 1877. Rule 30 of 1880. Rule 30 of 1884. Rule 30 of 1888 Rule 30 of 1896. Rule 30 amended, 1910. CODE OF CIVIL PROCEDURE. § 90. Clerks of courts of record in New York county not to be appointed referees without consent of the parties. See Judiciary Law, § 251. § 721. Omission of a referee to be sworn immaterial after the report has been made. § 827. Reference may be ordered for certain special cases. § SS8. Commission to take testimony — may issue in aid of a reference. § 992. What rulings may be excepted to. § 994. When and how exceptions may be taken to the report of a referee. § 997. Settlement of a case upon appeal in the event of the disability of the referee before whom it was tried. § 1004. Motion for new hearing after the trial of specific questions by a referee. § 1011. Reference by consent — clerk to enter order — appointing a new ref- eree where the one named refuses to act or a new trial is granted. § 1012. When reference by consent not allowed as of course. § 1013. Compulsory reference — when ordered. § 1014. Proceedings where the reference is for trial of part of the issues. § 1015. Reference upon questions incidentally arising. § 1016. Referee to be sworn. § 1018. General powers of a referee upon a trial. § 1019. Within what time the report must be filed. § 1021. Decision of referee upon a demurrer or where a nonsuit is granted. § 1022. Decision of referee upon an issue of fact — when it must award or deny costs — exception. § 1024. Qualifications of referee — when judge may act as referee. § 1025. Several referees may be appointed. § 1026. Proceedings on such a reference. § 1215. Judgment by default — reference may be ordered on application for — judgment, how entered. § 1216. Judgment by default, when summons has been served by pnblfca- tion, etc. § 1219. When a defendant in default is entitled to notice. § 1221. Where the issues are tried separately the judgment upon the last trial is to cover all the issues. § 1223. Proceedings and power of referee on an application under section 1221. § 1226. Judgment ■ — when a reference has been ordered upon one or more spe- cific questions of fact. § 1230. Reference — ^when the judgment requires the appointment of a ref- eree to do any act thereunder. Eule 30] Geneeal RtrLEs of Peactice. 175 § 1231. Final judgment may be ordered to be settled before a referee. § 1232. Interlocutory references or inquisitions, how reviewed. § 1545 et seq. Reference in partition. § 1607 et seq. Reference to admeasure dower. § 1659. Referee, on trial of action for wante, may view the property. § 1739. Referee to sell chattels in an action to foreclose a lien. See Lien Law, § 208. § 2305 et seq. Reference on petition for discovery of death of life tenant. § 2334 et seq. Reference in proceedings for sale of infant's real estate. § 2407. Reference to ascertain liens on surplus in foreclosure by advertise- ment. § 2423. Reference on voluntary dissolution of a corporation. See Gen. Corp. Law, §§ 176, 178, 181, 182, 184. § 2546. Surrogate may refer questions of fact, or account to a referee. § 2718. Reference of a disputed claim against the estate of a decedent. I 3367. Reference of issues arising in a condemnation proceeding — time within which decision must be filed. § 3378. Reference to determine the rights of conflicting claimants to the com- pensation paid in such proceeding. § 3380. Reference to ascertain amount of damages where the plaintiff has been given temporary possession. § 3392. Reference on an application for leave to sell, etc., corporate real estate. See G«n. Corp. Law, § 72. § 3431. Reference to determine rights of conflicting claimants on an applica- tion to foreclose a lien on a vessel. See Lien Law, § 97. See notes under Rules 31, 32. DISCONTINUANCE — After allowance of alimony and counsel fee to defendant.] When the defendant has acquired some fixed rights in the action, e. g., allowance of alimony and counsel fee in divorce suit, which a dis- continuance would affect, the plaintiff cannot discontinue without leave of the court on notice. (Leslie v. Leslie, 3 Daly, 194 [1870]; affirmed, 10 Abb. Prac. [N. S.] 64 [Ct. of App. 1871].) Counterclaim.] The plaintiff may discontinue, although defendant has put in a counterclaim. (Tubbs v. Hall, 12 Abb. Pra<:. [N. S.] 237 [N. Y. Com. PI. Sp. T. 1871].) Extra allowance.] The court may, however, compel payment of an extra allowance in addition to costs as a condition of such discontinuance. (Tubbs V. Hall, 12 Abb. Prac. [N. S.] 237 [N. Y. Com. PL Sp. T. 1871].) Proper remedy on referee's dismissal of the complaint.] On a trial before a referee plaintiff submitted to a nonsuit, the referee entering in his minutes " complaint dismissed, with costs." Defendant thereupon refused to proceed with proof of his counterclaim, though requested to do so by the plain- tiff, and claimed his right to tax costs and enter judgment. Plaintiff moved then for a dismissal of the counterclaim, which was denied, and judgment was entered by defendant upon the report of the referee according to the minutes. Held, that the motion for an order directing that the judgment of dismissal be vacated, and the case sent back to the referee to take proof and try the issue 176 Courts of Eecoed. [Rule 30 raised by the counterclaim and reply thereto was properly denied, plaintiff's remedy being by appeal. (Albany Braas & Iron Co. v. Hoffman, 30 App. Div. 76 [1898].) Right of defendant to withdraw a counterclaim.] Upon the trial of an action before a referee, the defendant may withdraw a counterclaim set up in his answer, in the same manner that the plaintiff may submit to a nonsuit on a trial at circuit, up to the time that the case is submitted to the referee. (Brown v. Butler, 58 Hun, 511 [1890].) REFERENCE — Residence of referee — where the referee may sit — when a reference should be ordered.] The referee need not reside in the county in which the venue is laid. He may be authorized to sit in any county to take testimony. (O'Brien v. Catskill Mountain Railroad Co., 32 Hun, 636 [1884].) Reference to take an account and report, also to decide certain ques- tions.] The provision of the Code of Civil Procedure (§ 101.5) authorizing the court to direct a reference " to take an account and to report to the court thereon either with or without the testimony * * * and also to determine upon a question of fact arising in any stage of the action * * » except upon the pleadings," does not authorize a reference simply to take testimony but to determine a question of fact and report such determination, and this onlj' to determine some question of fact which arises collaterally not upon the pleadings. (Doyle v. M. E. R. Co., 13G N. Y. 505 [1893].) Power of the legislature to authorize it.] As to whether the legislature has power under the Constitution to confer upon the courts power to grant such a reference, qucere. (Ih.) — : — New refereees — of claim against estate.] Where a disputed claim against the estate of a deceased iperson has been referred, pursuant to section 271S of the Code of Civil Procedure, the proceeding becomes an action in the Supreme Court, and the practice laid down by the Code for cases in that court which have been referred by stipulation must be followed. Where in such a case two of three referees appointed decline to serve, in the absence of any provision to the contrary in the stipulation for the reference, the court has the power to appoint other referees, and the exercise of this power is not dis- cretionary but mandatory. (Hustis v. Aldridge, 144 N. Y. 508 [1895].) Books not required to be left with the referee.] When the books of a judgment-debtor have been produced by him upon his examination, he cannot be compelled to leave them with the referee for the judgment- creditor to exam- ine. (Barnes v. Levy, 23 Civ. Proc. Rep. 253 [N. Y. City Ct. 1893].) Order of reference of action made on practice motion.] Tlie court, upon a practice motion, has no power to make an order of reference to hear and determine. The only order which it can make is to direct a referee named to take the testimony and report with his opinion. (Matter of Lord, 81 Hun, 590 [1894].) Form of order of reference to settle issues of fact preparatory to taking testimony.] (Miller v. Wilson, 1 Barb. 222 [Sp. T. 1847].) Common-law action not referable against objection of plaintiff by rea- son of fact that counterclaim has been interposed which will involve long examination of accoimts. (Snell v. Niagara Paper Mills, 193 N. Y. 433; Lind- ner V. Starin, 128 App. Div. 604.) Eule 30] General Rules of Practice. 177 As to reference in partnership accounting, see London t. Meryasli, 132 App. Div. 323. Question whether reference will be ordered without consent of parties to be determined from examination of the complaint alone where counterclaim is entirely independent of tlie facts in complaint. (Berry v. Maldonado & Co., 61 Misc. Rep. 442.) When omission to appoint guardian before commencement of action, mere irregularity. (Eimo v. Rosail ton Works Co., 120 N. Y. 433.) Court has power to correct error in name of owner in summons in fore- closure action. (Stuyvesant v. Weil, 167 N. Y. 421.) As to when reference will be ordered, see Lustgarten v. Harlam, 56 Msc. Rep. 606; Russell v. McDonald, 125 App. Div. 844; Roome v. Smith, 123 id. 416; Canavan Bros. Co. v. Automobile Club, 121 id. 751; Lindner v. Starin, 60 Misc. Rep. 431; Neal v. Gilleran, 123 App. Div. 63»; Johnson v. Wellington Copper, et<;., Co., 58 Misc. Rep. 353; Matter of Warren, 125 App. Div. 169; Pi-hice Line v. Seager Co.. 118 id. 697; Cavard v. Texas Crude Oil, etc., Co., Id. 299; Wynkoop v. Wynkoop, 119 id. 679; O'Brien v. Butchers' Dressed Meat Co., 54 Misc. Rep. 297; Aronin v. Phila. Casualty Co., Id. 630; Matter of Clem- ent V. Hegeman, 187 N. Y. 274; Fowler v. Peck, 51 Misc. Rep. 645; Smith v. London Assu. Corp., 114 App. Div. 868; People ex rel. Stewart v. Feitner, 53 Misc. Rep. 334; Hill v. Reynolds, 119 App. Div. 689; Endelberg v. Chapman, No. 2, 115 id. 154; Hoff v. Robert H. Reed Co., 110 id. 96; Owasco Lake Ceme- tery V. Teller, Id. 45; Moyer v. Village of Nelliston, Id. 602; Blun v. Mayer, 113 id. 242; Matter of Bishop's Estate, 111 id. 545; Russell Hardware, etc., Co. V. XJtica Drop Forge, etc., Co., 112 id. 703; Bentz v. Carleton & Hovey Co., 100 N. Y. Supp. 206. EEFEKEE DISQUALIFIED — Referee disqualified by reason of having acted in a former action between the same parties.] A referee is disqualified from hearing and deciding proceedings relating to the custody of an infant by reason of his having already in an action for divorce found one of the parents guilty of adultery. (Matter of BUss, 39 Hun, 594 [1886].) When a referee's report will be set aside because of bias and prejudice upon the part of the referee.] In this action it appeared that the referee from time to time as the trial proceeded importuned the defendant to aid him in securing an appointment to an office from the Governor and believed that the defendant could, by earnestly exerting himself, secure it for him; that these importunities continued to be addressed or suggested after the submission of the case and until near the time of its decision, and there was reasonable cause to believe that the prejudice was occasioned by the failure of the defendant to answer the last letter from the referee, which was written shortly before the case was decided. Held, that the report should be set aside. (Burrows v. Dickinson, 35 Hun, 492 [1885].) Misconduct of referee — disqualifying him to settle the case on appeal.] After a referee had made his report in favor of the plaintiff, the latter, as a consideration of its delivery, executed an agreement giving to the former a first lien for his fees "upon the judgment and claim of the plaintiff," the same to be paid out of the " first moneys collected * * * upon said judgment or 12 178 CouETs OF Recoed. [Rule 30 any subsequent judgment that may be recovered." Both the plaintiff and ref- eree knew at the time that the defendant intended to appeal. Held, that the referee was disqualified from settling the case, and that the plaintiff having by his own act created the disqualification waa not entitled as of course to the benefit of the provisions of the Code of Civil Procedure, section 997, which, in case of disability of a referee, permits the court to prescribe the manner of settling the case. (Leonard v. Mulry, 93 N. Y. 392 [1883].) When waiver is final.] Waiver is final where the attention of the party to a reference has been called to possible disqualification of referee for having served as clerk in the office of one of the attorneys. (Fleck v. Cohu, 131 App. Div. 248.) REPORT — When judgment is entered without authority, and when it is void for error of referee.] Where an inconsistency appears in the report of the referee as to which of two persons he has decided against, and where the report stated as a conclusion of law, in an action against defendant as execu- trix, the plaintiffs were entitled to a judgment against defendant, without stat- ing as executrix, held, that the clerk had no authority to enter judgment against her as executrix, and that a judgment so entered was not irregular merely but was void. (Matter of Baldwin, 87 Hun, 372 [1895].) Testimony accompanying the report, if not in full, should present the substance of what is material.] Where a referee was appointed to take and state an aoeount of the affirmative claim of the defendant, and the referee reported in favor of the defendant and a judgment was entered upon the report, held, that if it was regarded as a reference other than for the trial of the issues in an action the testimony should be signed by the witnesses and should accompany the report of the referee, as provided in General Rule 30, and the testimony, if not quite in full, should present the substance of that which was material. (Williams v. Lindblom, 90 Hun, 370 [1895].) Referee's report, on reference to state an account.] Where, in an action in which no answer is interposed, it is necessary to take and state an account for the information of the court before judgment, and a reference is ordered for that purpose, the report of the referee has the effect of a special verdict (Code of Procedure, § 272) ; and where exceptions are filed to the report by defendant, whch are overruled, the report confirmed and judgment rendered, an appeal from the judgment brings up the question whether the facts reported are sufficient to sustain the judgment; and upon a case with exceptions joined with the report, errors of law on the part of the referee may be reviewed. (Darling v. Brewster, 55 N. Y. 667 [1874].) Finding of fact, included in conclusions of law.] A finding of fact, though necessary to uphold the judgment, if included in the findings of law, is sufficient. (Sherman v. Hudson River R. R. Co., 64 N. Y. 254 [1876]; Matter of Clark, 119 N. Y. 433 [1890].) Finding inconsistent with the pleadings and the evidence — when judg- ment set aside because of.] Where the justice at Special Term finds a fact in conflict with the pleadings and not supported by the evidence, the judgment should be reversed wliere it is possible that such finding might have influenced the decision. (Duckelspiel v. Franklin, 2 N. Y. Wkly. Dig. 396 [Sup. Ct. 1876]; Ballau v. Parsons, 11 Hun, 602 [1877].) Eule 30] General Rules of Practice. 179 What findings required.] The referee is required to make sueh findings of fact as are necessary to sustain his conclusions of law. He is not required to find other facts which are merely of a negative character. (McAndrew v. Whitlock, 2 Sweeny, 623 [Gen. T. 1870]; Nelson v. Ingersoll, 27 How. Prac. 1 [Gten. T. 1864].) Omission to state a necessary conclusion of law.] When the omission to find a conclusion of law, resulting necessarily from facts found, is imma- terial. (Cragger v. Lansing, 64 N. Y. 417 [1876].) Finding that evidence " leaves the mind in doubt."] Where a referee finds in his report Uiat the evidence " leaves the mind* in doubt," it is error, and a new trial will be ordered. (Bradley v. McLaughlin, 8 Hun, 545 [1876].) Reference to determine issues in an accounting.] Report may state account between the parties -without an interlocutory judgment that an account is necessary. (Young v. Valentine, 177 N. Y. 347.) When finding necessary.] Where issues were tried before referee his report containing no findings not insufficient, etc. (La Grange v. Merritt, 83 App. Div. 279.) Report, not excepted to, may be canceled.] Rule 30 provides that a referee's report becomes absolute if not excepted to for eight days after notice of filing, but the county judge may, for good cause, cancel the same as for example, if the report shows that the referee has in his hands a large surplus which he never in fact received. (Wilson & Adams Co. v. Schorpp, 41 N. Y. St. Rep. 471 [Sup. Ct. 1891].) Ambiguous findings — so construed as to sustain judgment.] (Hill v. Grant, 46 N. Y. 498 [1871]; Fuller v. Conde, 47 id. 89 [1871] ; Waugh v. Sea- board Banh, 115 id. 42 [1889]; Tyron v. Baker, 7 Lans. 511 [Gen. T. 1873].) Report of referee under order entered upon remittitur of Court of Appeals, how reviewed.] The report of a referee, appointed under an order entered upon a remittitur of the Court of Appeals, to assess the damages to which plaintiff is entitled, cannot be reviewed by defendants upon a case and exceptions, but only in compliance with this rule. (Bates v. Holbrook, 41 Misc. Rep. 129.) Filing of report terminates the action ] The filing of the report of a referee appointed to hear and determine the issues in an action operates as a termination of the action. (Spencer v. Huntington, 100 App. Div. 463.) Report cannot be filed after death of referee.] Under a reference to state accounts of assignee where the referee has signed his report but not fileil it and then died. Held, report could not thereafter be filed. (House v. Wechsler, 104 App. Div. 124.) On the trial of a demurrer or on. a nonsuit. ( Code of Civil Procedure, § 1021.) On the trial of an issue of fact. (Code of Civil Procedure, § 1022.) ' Where there are several referees a majority of them may sign the report. (Code of Civil Procedure, § 1026.) CONFIRMATION OF REPORT — Report of deficiency on foreclosure — need not be confirmed — nor need a further judgment be entered.] Referee's report of deficiency on a foreclosure sale, need not be confirmed. No further judgment need be entered thereon. (Moore v. Shaw, 15 Hun, 428 [1878].) 180 Courts of Eecoed. [Eule 30 Report of sale in foreclosure — how far confirmation is necessary.] How far it is necessary to have a report of sale by a referee in foreclosure confirmed in order to perfect the title as between the mortgagor and pur- chaser, considered. (Moore v. Shaw, 15 Hun, 428 [1878].) Surplus money proceedings — notice to all claimants necessary.] Under Rule 64 it is necessary on an application to confirm the report of the referee in surplus money proceedings to give notice of such application to every party who has appeared in the foreclosure action or who has filed with the clerk notice of a claim to such surplus money, although the report of the referee has been filed and notice of its making and filing has been given, and no exceptions have been filed thereto. Rule 30 is not, so far as it conflicts with Rule 64, applicable in this respect to such a proceeding. (Van Voast v. Gushing; 32 App. Div. 116 [1898].) When the report becomes absolute.] If a party neglect to except to a referee's report, for eight days after notice of its filing, it becomes absolute, although it be defective on its face. (Catlin v. Catlin, 2 Hun, 378 [1874].) Trial before referee has the same force as trial at Special Term and findings will not be set aside unless in the opinion of the court there was prejudicial error. (Coates v. Village of Nyack, 127 App. Div. 153.) Determination of referee under Laws of 1902, chapter 60, final and con- clusive, unless set aside by the court. (People v. Federal Bank, 122 App. Div. 810.) Where an action at law is tried before a referee, errors in the admission of evidence which are not so substantial as to raise a presumption of prejudice do not require a new trial. On a trial before a referee the rule is the same as in suits in equity. (Weihert v. Hanan, 136 App. Div. 388.) If exceptions be not filed.] Under Rule 30 of the General Rules of Practice, the report of a referee appointed to take and state the accounts of an assignee for the benefit of creditors, and to determine the respective priori- ties of the creditors, becomes absolute unless exceptions thereto are filed and served within eight days after the service of notice of the filing of the report. (Matter of Talmage, 39 App. Div. 466 [1899].) Findings of referee not conclusive on the court.] The finding of a referee to whom is referred disputed questions of fact arising upon a motion, is not conclusive upon the court. It is but to inform the conscience of the court, and may be adopted or disregarded, (ilarshall v. Jleech, 51 N. Y. 140 [1872].) Questions presented by an appeal.] Where exceptions filed to a referee's report are overruled, and a decree is made confirming the report, an appeal from the decree brings up for review only the questions presented by the ex- ceptions. (Matter of Talmage, 39 App. Div. 466 [1899].) Ex parte confirmation improper.] The report on a reference ordered for the information of the court on a motion cannot be confirmed ex parte. (Sproull v. Star Co., 27 Misc. Rep. 27 [1899].) Notice of a motion to confirm report — when premature.] A notice of a motion to confirm the report of a referee appointed to assess the damages sustained through the granting of a preliminary injunction, served before the Rule 30] Geneeal Rules of Pkactice. 181 time for filing exceptions lias expired, is premature, and the motion should be denied. (James v. Horn, 19 App. Div. 259 [1897].) Where made in the first department. (Empire B. & M. L. Assn. v. Stevens, S Hun, 515 [1e tried by a jury. (Mackellar v. Rogers, 9 Civ. Proe. R. 6 [N. Y. Supr. Ct. Gen. T. 1885].) Equity actions not covered by Code of Civil Procedure, § 970.] The provision of the Code of Civil Procedure (§ 970), as amended in 1891 (chap. 208, Laws of 1891), declaring that "where a party is entitled by the Constitu- tion or express provision of law to a trial by jury of one or more issues of fact, or where one or more questions arise on the pleadings as to the value of prop- erty, or as to the damages which a party may be entitled to recover, either party may apply on notice at any time to the court for an order directing all such issues or questions to be distinctly and plainly stated for trial accord- ingly," and requiring the court on such application to cause such issues or Eule 31] General Rules of Peactice. 187 questions to be so stated, does not apply to actions of a purely equitable nature, but merely widens the right to a jury trial in those cases to which said section was previously applicable. (Sheppard v. M. E,. Co., 131 N. Y. 215 [1892].) Equity action to set aside a deed — second motion for a new trial.] Where, in an action in equity to set aside a deed, the court denied the defend- ant's motion for a new trial on the minutes, certain issues having been sub- mitted to a jury, the defendant is not precluded from again moving for a new trial upon a case and exceptions, when the application is made at a Speciil Term for final judgment. (Anderson v. Carter, 24 App. Div. 462 [1897].) Settlement of issues.] The court may submit to a jury additional issues arising upon the proofs and material to the final determination. ( Farm- e-s & Mechanics' Bank v. Joslyn, 37 N. Y. 353 [1867].) Motion, when not premature.] Simply because the trial of such issues may not be necessary on account of the detei-mination of the matter in dispute in other respects such motion is not premature if made after issue joined. (Eggers V. Manliattan Co., 27 Abb. N. C. 463 [N. Y. Supr. Ct. 1891].) Motion for jury trial, must be made within the prescribed time.] A motion to frame issues for trial by a jury, will be denied, if not made within the time prescribed by Rule of Practice 31, unless some special reasons for framing issues exist. (N. Y. Life Ins. & Trust Co. v. Ines, 41 N. Y. Supp. 225 [1896].) Power of the court to order issues to be settled although more than ten days have elapsed since they have been joined.] In this action, brought to foreclose two mortgages, a judgment of the County Court was entered, sus- taining the defense of usury to one and rejecting it as to the other. The General Term reversed so much of the judgment as was in favor of the plaintiff and granted a new trial. Thereupon the County Court, upon the motion of the plaintiff, granted an order to settle the issues as to this mort- gage, for trial by a jury. Held, that the court had power so to do, although more than ten days had elapsed since the issues had been joined in the action. (Apel V. O'Connor, 39 Hun, 482 [18S6].) When application for, granted.] In a proper case, the court will direct the issues to be tried by a jury, even though the application is not made within ten days after issue joined. (Clark v. Brooks, 26 How. Prae. 285 [Sp. T. 1864].) May be directed after the case has been submitted.] After an equity case has been tried and finally submitted for decision, the court, at Special Term, has the power, of its own motion, to direct certain issues therein to be passed upon by a jury, if the case be one in which, under similar circumstancen, the late Court of Chancery was authorized to direct a feigned issue. ( Brinkley V. Brinkley, 2 N. Y. Sup. Ct. Rep. 501 [Gen. T. 1874]; contra, O'Brien v. Bowes, 4 Bosw. 657 [Gen. T. I860]; S. C, 10 Abb. 106.) Power not affected by Code of Procedure, § 267.] The power to direct trial of feigned issues is not restricted or affected by the provisions requiring the judge to make and file his decision within a specified time. This provision 188 CoDETS OF Ebcoed. [Rule 31 is necessarily with the implied qualification that no other disposition is made cf the case. (Brinkley v. Brinkley, 56 K Y. 192 [1874].) When application for, not granted.] Where an application for a jury trial of issues is made by a party not entitled thereto as of right. Rule 31, providing for ten days' notice after the joinder of issue, is applicable, and it is improper to grant such application upon behalf of a party in default, where no reason is given why the application was not made within ten days after joinder of issue. (EUensohn v. Keyes, 6 App. Div. 601 [1896].) Wot after trial.] But not after the trial has commenced. (People v. Albany & Susquehanna R. E. Co., 1 Lans. 308 [Sp. T. 1869]; S. C, 55 Barb. 344; 7 Abb. [N. S.] 265; 38 How. Pr. 228.) Provisions of section 970, Code of Civil Procedure, do not apply to an action for divorce. (Haff v. Haff, 64 Misc. Rep. 122; Wilcox v. Wilcox, 116 App. Div. 421.) Court has no authority to entertain application for new trial on the ground of newly discovered evidence until a case and exceptions have been made and settled. (Soloman v. Alexander, 128 App. Div. 441.) Issues as to the terms of a partnership — should not be framed until after the accounting.] Issues should not be framed until after an accounting in a case in which a partnership is admitted to have existed, when its terms are in dispute. (Johnson v. Arnold, 1 Law Bulletin, 53 [N. Y. Supr. Ci. Sp. T. 1879].) Motion to set aside a judgment — when feigned issue not to be directed.] A feigned issue should not be directed upon a motion to set aside the judgment where the notice of motion merely asks (in addition to the principal motion) for such further or other relief as the court may grant. (Mann v. Savage, 7 How. Prac. 449 [Sp. T. 1853].) Notice of trial at Special Term — not a waiver.] The service of a notice of trial for Special Term does not waive the right to move for awarding of issues as to value or damages as conferred by section 970 of the Code, as amended by the Laws of 1891, chapter 208. (Underbill v. Manhattan Ey. Co., 27 Abb. N. C. 478 [Supr. Ct. 1891].) FORM OF ORDER — As to the proper form of order of reference to settle issues of fact, preparatory to taking testimony.] (See Miller v. Wilson, 1 Barb. 222 [Sp. T. 1847].) REVIEW — A refusal to settle issues is not appealable to the Court of Appeals — proper remedy.] A refusal to grant an order settling issues, in an action for equitable relief, to be tried by a jury, does not necessarily deprive the defendant of his right to such trial. If he has that right and the cause is brought to trial before the court, without a jury, he may then object, and it will be the duty of the court to order the cause to be tried before a jury. If the court refuses to do so, the remedy of the party aggrieved is by appeal from the judgment. An appeal Avill not lie to the Court of Appeals from the order denying a motion to settle the issues. (Colman v. Dixon, 50 N. Y. 572 [1872]; Hudson v. Caryl, 44 id. 563 [1871]; Davis v. Morris, 36 id. 569 [1867]; Kinne v. Kinne, 2 N. Y. Sup. Ct. Rep. 393 [Gen. T. 1873].) Eule 31] General Rules of Practice. 189 An order granting trial of feigned issue is discretionary.] A motion made in chancery for an issue to be awardedi for trial by a jury, is addressed to the discretion of that court, and the order made upon the motion is, tliere- fore, not appealable to the Court of Appeals. (Candee v. Lord, 2 N. Y. 269 [1848].) An order setting aside issues and directing others to be settled, is dis- cretionary.] An order- setting aside issues already tried, and directing that other issues be settled by a referee and be tried, is discretionary, and not appealable to the Court of Appeals. (Colie v. Tifft, 47 N. Y. 119 [1871]; Bennett v. Stevenson, 53 id. 508 [1873].) The manner of trial in equity cases rests in the discretion of the court.] Where an action is brought in equity, and the demand is for purely equitable relief, the trial of questions of fact by the court is in its discretion. (Rexford V. Marquis, 7 Lans. 249 [Gen. T. 1872] ; Ivnickerbooker Life Ins. Co. v. Nelson, 8 Hun, 21 [1876].) Equity cases — framing issues discretionary — not ordered simply to avoid conflict of evidence.] The framing of issues for the jury in a purely equitable action is a matter entirely in the discretion of the court, and will not be ordered merely because the trial will probably involve a conflict of evi- dence. (Cantoni v. Forster, 12 Misc. Rep. 343 [1895].) Denial of motion for new trial of special issues is not appealable.] An order made by a judge at the Circuit, refusing a new trial upon his min- utes, in the case of a trial of special issues in an equity action, is not appeal- able. The defeated party must wait until after the trial of the action at Special Term, or at least until after a motion at Special Term for a new trial. (Hatch v. Peugnet, 64 Barb. 189 [Gen. T. 1872 J.) An order directing the trial of issues is.] An order directing that issues be framed is appealable. (Ellensohn v. Keyes, 6 App. Div. 601 [1896].) Motion for a new trial necessary.] Where, in an action brought to foreclose a mortgage, issues of fact are framed and, in pursuance of an order to that effect, tried by a jury, a motion for a new trial on a case and excep- tions founded upon irregularities committed on the trial by the jury must be made before the entry of judgment in the action, otherwise the finding of the jury will be deemed to have been acquiesced in, and questions of fact involved therein cannot be reviewed on an appeal from the judgment. (Chapin v. Thompson, 23 Hun, 12 [1880]. See, also, Ulbricht v. Ulbricht, 89 Hun, 479 [1895].) Defendant not obliged to move to frame issues in a divorce action.] The right of a defendant in an action for an absolute divorce to have the issue of fact tried by a jury is an absolute one, of which she can only be deprived in the manner prescribed by the Code; she is not bound to move for the framing of issues; that is the duty of plaintiff, and the defendant's failure so to move affords no ground for vacating an order for alimony. (Ulbricht v. Ulbricht, 89 Hun, 479 [1895].) JURY TRIAL — The right of trial by jury is determined by the court, not by the parties.] The court, not the parties, determines whether an issue shall be tried by a jury. (Knickerbocker Life Ins. Co. v. Nelson, 8 Hun, 21 [1876]. See Penn. Coal Co. v. Del. & Hud. Canal Co., 1 Keyes, 72 [1863].) 190 Courts of Eecoed. [Eule 31 Jury trial, when.] When a party is entitled to jury trial. (Lefrois v. County of Monroe, 88 Hun, 109 [1895]; Pegran v. N. Y. Elevated R. R. Co., 147 N. Y. 135 [1895]; Johnson v. Alexander, 23 App. Div. 538 [1897]; Herb v. Metropolitan Hospital, 80 id. 145 [1903].) Right of jury trial is waived wlien plaintiff chooses his forum, serves notice of trial and fails to move to frame issues within the time limited. (Ettlinger v. Trustees of Sailora' Snug Harbor, 122 App. Div. 681.) 'As to what issues should be tried by the court and what by a jury. (See Bush v. Bush, 103 App. Div. 588.) When a party is not entitled to jury trial.] (Hart v. Brooklyn Ele- vated R. R. Co., 89 Hun, 82 [1805]; Goldschmidt v. N. Y. Steam Co., 7 App. Div. 317 [1896]; Laufer v. Sayles, 5 id. 582 [1890]; EUensohn v. Keyes, 6 id. 601 [18.96]; Schillinger Fireproof Cement Co. v. Arnott, 152 N. Y. 584 [1897].) When the right to a jury trial must be demanded — laches.] A party desiring to avail himself of the right to a trial by jury must make hia demand before trial and not wait until after the case has been opened and a motion made to dismiss the complaint. (Marshall v. De Cordova, 26 App. Div. 615 [1898].) Equitable action — issue of damages — when triable by a jury.] It seems that in an equitable action, if the defendant apply therefor, the court may direct that the issue as to the amount of damages involved be tried by a jury. (Brooklyn Elevated R. R. Co. v. Brooklyn, Bath & West End R. R. Co., 23 App. Div. 29 [1897].) Jury trial where equitable relief is sought in an action for a nuisance — order granting new trial appealable.] Where in an action to abate a nuisance and for damages the complaint asks for equitable relief, the defendant is enti- tled to have the issues of fact tried by a jury under section 970 of the Code of Civil Procedure, and an order granting plaintiff a new trial is appealable. (Lefrois v. County of Monroe, 88 Hun, 109 [1895].) Action growing out of equitable doctrine of subrogation, triable at Trial Term.] Where an insurance company subrogated to the rights of insured sues for negligence causing the loss, the action is at law for negligence, though growing out of the equitable doctrine of subrogation, and hence properly triable at the Trial Term. (German Am. Ins. Co. v. Standard Gas Light Co., 67 App. Div. 539; 73 N. Y. Supp. [107 St. Rep.] 973.) If a case embraces both legal and equitable claims, the whole case must go to the jury.] If the pleadings show both legal and equitable claims, the whole case must go to the jury. (People v. Albany & Susq. R. R. Co., 5 Lans. 25 [Gen. T. 1871]; affd., 57 N. Y. 161; Davis v. Morris, 36 id. 509 [1867]. See Loomis v. Decker, 4 App. Div. 409 [1896].) Action for both legal and equitable relief.] In a case in which both legal and equitable relief is demanded the plaintiff, by election, may submit to have the issues tried by the court and thereby waives his right to a jury trial. (Loomis V. Decker, 4 App. Div. 409 [1896].) In what case defendant is not entitled to have issues framed and tried at law.] Where a defense of usury and fraud is interposed in an action for foreclosure and to recover any deficiency, the defendant cannot claim as a mat- Rule 31] General Rules of Pkactioe. 191 ter of right to have the issues, framed and tried at law. (Knickerbocker Life Ins. Co. V. Nelson, 8 Hun, 21 [1876].) Action to foreclose a mechanic's lien.J An action to foreclose a mechanic's lien is triable by the court alone, even though, by stipulation, the personal responsibility of the contractors is substituted for a lien on the real property. The remedy of a party thereto desiring a jury trial is to apply to the court to frame issues under section 823 of the Code of Civil Procedure. (Schillinger, etc.. Cement Co. v. Arnott, 152 N. Y. 584 [1897].) Past damages done by an elevated railroad.] Where plaintiff brings an actiou for past damages, resulting from the operation of an elevated railway, and to restrain its further operation in front of his premises, the question of past damages must be brought before a jury upon application of defendant, section 970 of the Code as amended being applicable to such cases. (Eggers v. Manhattan Ry. Co., 27 Abb. N. C. 463 [N. Y. Supr. Ct. 1891].) A party not entitled to equitable relief may have a trial at law.] A party failing to make out a case for purely equitable relief is still entitled to a trial by jury of his legal cause of action. (Black v. White, 37 N. Y. Supr. Ct. 320 [Gen. T. 1874]; Sternberger v. McGovern, 56 N. Y. 12 [1874]; Genet v. Howland, 30 How. Prac. 361 [Sp. T. 1866] ; Lewis v. Varnum, 12 Abb. 305 [N. Y. Com. PI. Gen. T. 1861].) Waiver of a jury trial.] The failure to demand a juiy trial in an action for an injunction and damages amounts to a waiver of the right thereto. (Hartman v. Manhattan Ry. Co., 82 Hun, 531 [1894].) POWER OF THE COURT OVER THE VERDICT — Not a trial of tho issue.] Where a specific question of fact is to be tried by a jury, it is not the trial of the issue. The facts found must be approved by the court before they can constitute the basis of a judgment. (Vermilyea v. Palmer, 52 N. Y. 471; Randall v. Randall, 114 id. 499 [1889]; McQave v. Gibb, 157 id. 413 [1898]; Brown v. Clifford, 7 Lans. 46 [Gen. T. 1872].) Motion for a new trial necessary.] Where, in an action brought to foreclose a mortgage, issues of fact are framed and, in pursuance of an order to that effect, tried by a jury, a motion for a new trial on a case and exceptions, founded upon irregularities committed on the trial by the jury, must be made before the entry of judgment in the action, otherwise the finding of the jury will be deemed to have been acquiesced in, and questions of fact involved therein cannot be reviewed on an appeal from the judgment. (Chapin v. Thompson, 23 Hun, 12 [1880]; 89 N. Y. 270 [1882].) Motion for new trial — newly-discovered evidence.] A motion for a new trial upon the ground of newly-discovered evidence, will be denied where it is apparent that ordinary care and diligence in the preparation of the case for trial would have enabled the moving party to make the proof which he seeks to present upon the second trial. (Reid v. Gaedeke, 38 App. Div. 107 [1899]; Farmers' National Bank v. Underwood, 12 App. Div. 269 [1896]; Hagen v. N. Y. C. & H. R. R. Co., 100 id. 218.) The General Term cannot set aside a verdict, where no application therefor has been made below.] Where, in an equity action, specific questions of fact are ordered to be tried by a jury, and its verdict is produced and used 19^ CouETs OF Eecobd. [Kule 31 on the trial of the action, no application having been made to set it aside, the General Term cannot, on appeal, set it aside and order a new trial. (Jackson V. Andrews, 59 N. Y. 244 [1874].) Acquiescence presumed, in case a motion is not made for a new trial.] If the unsuccessful party does not move for a new trial, he will be deemed to have acquiesced in the verdict on the issue tried. (Ward v. Warren, 15 Hun, 600 [1878].) Conditions imposed on granting a new trial — a mere tender of per- formance is insufficient.] The condition of an order for a new trial, requiring the payment of costs and delivery of an undertaking, is not complied wi|h by a mere tender of the costs and undertaking which the other party refuses to accept on the ground that he intends to appeal from the order, but to make the order effectual after affirmance there must be an actual payment of the costs and delivery of the undertaking. (Stokes v. Stokes, 38 App. Div. 215 [1899].) Full costs are allowed where a motion for a new trial is made on a case. (Reid v. Gaedeke, 38 App. Div. 107 [1899].) Dismissal of complaint — not proper on the trial of issues, settled,] Upon the trial before a jury of issues settled in an equity action, the com- plaint cannot be dismissed as to one or all the defendants. A verdict upon all the issues as to all the parties must be rendered, and the cause afterward heard by the court. (Moore v. Metropolitan Nat. Bank, 55 K. Y. 41 [1873]; Birdsall v. Patterson, 51 id. 43; MacNaughton v. Osgood, 114 id. 574 [1889].) Motion for new trial — upon what terms granted.] (Smith v. City of New York, 55 App. Div. 90 [1900]; Larsen v. U. S. Mortgage & Trust Co., 104 id. 76.) Improper statement of counsel to jury — ground for new triaL] Where statements to a jury made by a counsel tend to mislead the j\iry and to awaken their prejudices and arouse their passions and such statements receive the sanction of 13ie court, a new trial is properly granted. (Kinne v. Int. Railway Co., 100 App. Div. 5.) New trial for inconsistencies in referee's report. (Cohen v. Wittemann, 100 App. Div. 338.) Error in rulings on the trial of feigned issues where the verdict is made the basis of the judgment — effect of.] Where erroneous rulings have been made in a case in which issues have been framed for trial by a jury, and the verdict, in part influenced by them, has been made the basis of a final recovery, a new trial should be ordered, despite the provisions of section 1003 of the Code of Civil Procedure, declaring that an '" error in the admission or exclusion of evidence, or in any other ruling or direction of the judge upon the trial, may, in the discretion of the court which reviews it, be disregarded if that court is of opinion that substantial justice does not require that a new trial should be granted." (Bowen v. Beeht, 35 Hun, 434 [Gen. T. 1885J.) When the judgment in such case will be set aside.] Where such erro- neous rulings have been made by the justice presiding at the trial before the jury of the specific questions referred to them, and it appears from the decision of the justice before whom the issues in the action were tried at Special Rule 32] General Etjles of Pkactice. 193 Term, and from the judgniont entered thereon, that the findings of the jury upon the questions submitted to it were considered by him in arriving at his decision, the judgment will be reversed. {lb.) A motion must be made before commencement of hearing directed by interlocutory judgment.] A motion for a new trial for the purpose of review- ing an interlocutory judgment, must be made before the commencement of the hearing directed by the said judgment. (Greene v. Roworth, 6 Misc. Rep. 130 [N. Y. Com. PL 1893].) New trial granted on wrong reason.] An order granting a new trial will not be set aside because a wrong reason was given for granting it. (Ross v. Met. S. R. Co., 104 App. Div. 378.) Third trial.] Verdict against the weight of evidence not sustained because of third trial. (Meinvenken v. N. Y. C. & H. R. R. Co., 103 App. Div. 319.) PARTITION — Action brought under chapter 238 of 1853 — issues settled.! In an action for partition brought by an heir under the provisions of chap. 238 of the Laws of 1853 (see Code of ttvil Procedure, §§ 1537, 1806, relative to disputed wills), the court, at Special Term, has authority to direct issues of fact to be settled, and that the verdict of the jury thereon be certified to the Special Term for further proceedings. It is within the discretion of the court whether the case shall be so disposed of or shall be placed upon the Circuit calendar for the court to submit to the jury such questions of fact as are presented by the pleadings; and the exercise of this discretion is not reviewable. (Hewlett v. Wood, 62 N. Y. 75 [187&]; Weston v. Stoddard, 137 N. Y. 119 [1893].) DIVORCE — See notes under Rule 72. ETJIE 32. Making and Settling Cases, Exceptions, etc. — Amendments — Settlement of by the Justice — Extensions of Time to be on Notice. Whenever it shall be necessary to make a case, or a case and exceptions, or a case containing exceptions, the same shall be made, and a copy thereof served on the opposite party within the following times: If the trial was before the court or referee, including trials by a jury of one or more specific questions of fact in an action triable by the court, within thirty days after service of a copy of the decision or report and of written notice of the entry of the judg- ment thereon. In the Surrogate's Court, within thirty days after service of a copy of the decree or order and notice of the entry thereof. If the trial were before a jury, within thirty days after notice of the decision of a motion for a new trial, if such motion be made 13 194 CoTJETs OF Kbcoed. [Rule 32 and be not decided at the time of the trial, or within thirty days after service of a copy of the judgment and notice of its entry. The party served may, v?ithin ten days thereafter, propose amendments thereto, and serve a copy on the party proposing a case or exceptions, who may then, within four days thereafter, serve the opposite party with a notice that the case or exceptions with the proposed amendments will be submitted for settlement at a time and place to be specified in the notice, to the judge or referee before whom the cause was tried. Whenever amendments are proposed to a case or exceptions, the party proposing such case or exceptions shall, before submitting the same to the judge or referee for settlement, mark iipon the several amendments his allowance or disallowance thereof, and shall also plainly mark thereon and upon the stenographer's min- utes the parts to which the proposed amendments are applicable, together with the number of the amendment. If the party pro- posing the amendments claims that the case should be made to conform to the minutes of the stenographer he must refer at the end of each amendment to the proper page of such minutes. The judge or referee shall thereupon correct and settle the case. The time for settling the case must be specified in the notice, and it shall not be less than four nor more than ten days after the service of such notice. The lines of the case shall be so numbered that each copy shall correspond. The surrogate, on appeal from his court, may by order allow further time for the doing of any of the acts above provided to be done on such appeals. Cases reserved for argument and special verdicts shall be settled in the same manner. The parties may agree on the facts proven to be inserted in the case, instead of the testimony, on the approval of the judge. No order extending the time to serve a case, or a case containing exceptions, or the time within which amendments thereto may be served, shall be made \inless the party applying for siich order serve a notice of two days upon the adverse parties of his inten- tion to apply therefor, stating the time and place for making such application. Rule 34 of 1858, amended. Rule 41 of 1871, amended. Rule 41 of 1874, amended. Rule 32 of 1877, amended. Part of fifth paragraph from Rule 34 of 1877, added. Rule 32 of 1880. Rule 32 of 1884. Rule 32 of 1888, amended. Rule 32 of 1896, amended. Eule 32] Geneeal Rules of Peactice. 195 CODE OF CIVIL PROCEDURE. § 25. Settlement of case by judge out of office allowed. § 992. What rulings may be excepted to. § 994. Exceptions after the close of the trial to the findings of laVT. § 995. Exceptions during trial — how made and how noted. § 996. Exceptions to rulings — how reviewed. § 997. Case on appeal or on motion for a new trial, when necessary — how made and settled. § 998. Motion for new trial on minutes, or for irregularity or surprise, or on appeals where reliance is only upon exceptions taken — case not necessary. § 999. Motion for new trial on minutes — appeal from order thereon — case necessary on. § 1000. Exceptions on jury trial, ordered to be heard at Appellate Division in first instance. § 1001. Motion for new trial at Appellate Division when trial was by court or referee — exceptions, within what time to be taken. § 1002. When motion for new trial to be made at Special Term. § 1003. Review of trials of specific questions by a jury. § 10O4. Motion for new hearing after trial of specific questions by a referee — case, when necessary. § 1005. Final, judgment not stayed by motion for a new trial'. § 1006. When exceptions not to prejudice a motion for a -new trial. § 1007. Notes of stenographer may be treated as minutes. § 1010. Trial by the court — within what time the decision should be filed. §§ 1021, 1022. Decision — what to contain. § 1180. Exceptions to decision on challenge to jury. § 1279. Case on submission of controversy without action. § 1315. What papers are to be transmitted to the appellate court. § 1339. Case on appeal from judgment of Appellate Division rendered on a verdict taken subject to the opinion of the court — statement of facts. § 1353. Upon what papers an appeal will be heard. § 2545. Settlement of ease on appeal from a Surrogate's Court. § 2576. When case to be made and settled on appeal from Surrogate's Court. § 3251. Amount of costs for making and serving case and amendments. FINDINGS — Court may still make findings.] Notwithstanding the repeal of section 1023 of the Code of Civil Procedure and the amendment of sec- tion 1022 tliereof, the court upon trial of an action may still state separately the findings of fact and conclusions of law and direct the judgment to be entered thereon. (Walrath v. Abbott, 85 Hun, 181 [1895].) Requests to find no longer authorized.] The right of a party to an action to have a referee pass upon his proposed finding was not saved from the operation of the Repealing Act (section 1, chap. 688, Laws of 1894) by 196 CouETs OF Eecoed. [Piule 32 the provisions of section 31, cliap. 677 of the Laws of 1892. (Lazarus v. Metropolitan Elevated E. Co., 145 N. Y. 581 [1895].) Upon whom findings of fact are binding.] Where the respondents do not appeal, they are bound by the findings of fact made by the trial court, ■while the appellants are bound by all to which they do not except, and after affirmance by the General Term, by all, even of those excepted to, that find any reasonable support in the evidence. (Cox v. Stokes, 150 N, Y. 491 [1898].) Trial by the court.] Findings of fact and conclusions of law must be made and signed, and a trial of a contested question of fact by the court can- not be reviewed unless such a decision be made. (Benjamin v. Allen, 35 Hun, 115 [1885].) Facts not found and not asked for, not ground for reversal.] Facts not found by a referee, and as to which no finding was requested, may not be considered for the purpose of reversing a judgment. (Burnap v. Xational Bank of Potsdam, 96 N. Y. 125 [1884]; Palmer v. C. H. Cemetery, 122 id. 429 [1890].) Negative facts.] A referee is not required to find facta of a purely negative character. (McAndxew v. Whitlock, 2 Sweeny, 632 [Gen. T. 1870].) Evidence and argument improper.] ISTeither evidence, argument nor comment has any legitimate •place in findings of fact or law. ( Glacius v. Black, 50 N. Y. 147 [1872].) Findings where a judgment is rendered on the pleadings.] Where a judgment is rendered on the pleadings, no findings of fact are required. (Eaton V. Wells, 82 N. Y. 576 [1880].) Where the complaint is admitted to be true.] Where the court tries a case under an admission that the allegations of the complaint are true and no evidence is given by either party, the findings should follow "the statements of the complaint. (Brown v. Stciger, 21 Hun, 219 [1880].) Additional findings — cannot be made on the settlement of a case.] A judge or referee cannot make additional findings of fact or law upon the settlement of the case, and after his report or decision has been filed. (Palmer V. Phffinix Ins. Co., 22 Hun, 224 [1880]; G'ormerly v. JlcGlynn, 84 N. Y. 284 [1881].) Ambiguous findings construed to sustain the judgment.] If the find- ings of the trial court are capable of two constructions, and the evidence is not contained in the case, the appellate court will adopt the construction which will sustain the judgment. (Drake v. Village of Port Richmond, 1 App. Div. 243 [1896].) Difference between opinion and findings.] The fact that the opinion filed by a justice before whom an action was tried, and the findings signed by him do not coincide, in no way forms a ground tor the reversal of a judgment, inasmuch as the opinion cannot be referred to for the purpose of showing the incorrectness of the findings upon which the judgment is based. (Tannen- baum v. Armeny, 81 Hun, 581 [1894].) Inconsistent ruling.] The attorney claiming inconsistent rulings can- not avail himself of the referee's findings upon respondent's objections and ''Eiile 32] Geneeal Rules of Practice. 197 exceptions appearing in the case on appeal from which they should have been omitted. (Clark v. House, 40 St. Eep. 956 [Sup. Ct. 1891]. See, also, Mason Stable Co. v. Lewis, 16 Misc. Rep. 359 [Sup. Ct. App. T. 1896].) To reverse conclusions of law, the facts found must be inconsistent with them.] To reverse the conclusions of law of a referee, it must appear from the facts found that they are erroneous. (Collender v. Phelan, 79 N. Y. 366 [1880].) Inconsistent findings to be reconciled.] Where the findings of a trial court are appa.rently inconsistent, it is the duty of the appellate court, if possible, to reconcile them and give effect to the real meaning and intent of the court in making them. (Health Department v. Purdon, 99 N. Y. %?,', [1885].) It is the duty of the appellate court to harmonize them.] It is the duty of the Court of Appeals to harmonize the findings of a trial court so as to arrive at the real intention, if it can be done; and an intention to reverse a deliberate finding will not be imputed because of collateral findings in whicli an inadvertent or immaterial expression is used. (Bennett v. Bates, 94 N. Y. 354 [1884].) Right of the defeated party where the findings are conflicting.] Where a referee's findings of fact are conflicting the defeated party is entitled to th^se which are most favorable to his side of the case. (Bonnell v. Griswold, 89 N. Y. 122 [1882] ; Kelly v. Leggett, 122 id. 633 [1890] ; Israel v. Manhattan R. Co., 158 id. 624 [1899].) Irreconcilable findings construed in favor of the appellant.] Where inconsistent findings are irreconcilable the Court of Appeals must accept ;is true those most favorable to the appellant's contention. (Parsons v. Parker, 159 N. Y. 16 [1899].) Insufficiency of finding.] The insufiiciency of the finding is not of itself a ground for the reversal of the judgment. (Van Slj'ke v. Hyatt, 46 N. Y. 263 [1871].) Rule as to reviewing facts.] While a review of the facts by an appellate tribunal is proper, it is under no obligation to arbitrarily adopt the conclusions of the trial court, yet great consideration should be accorded to its opinions, especially where there is evidence upon both sides, and the mind of the court is called upon to weigh conflicting statements and inferences and to decide upon the credibility of opposing witnesses. (McNaney v. Hall, 86 Hun, 415 [1895]; Hewlett v. Saratoga Carlsbad Spring Co., 84 id. 248 [1895].) Looking to evidence to sustain findings.] Where the court at General Term has all the facts before it, all the evidence being contained in the appenl book, support for the conclusions of law may be sought upon the evidence, unless the trial court or referee has by an express finding or ruling concluded questions essential to the judgment against the respondent. (Page v. Metro- politan Elevated Railway Co., 10 Misc. Rep. 134 [1895].) Conflicting evidence, findings not disturbed.] Where the evidence is conflicting, the findings m'ade by the trial court will not be disturbed. ( Stiles V. Benjamin, 92 Hun, 102 [1895]; Requa v. Requa, 16 App. Div. 629 [1897]. See, also, Kane v. Kane, 13 id. 544 [1897]; Fuller v. Tolman, 92 Hun, 119 [1895].) 198 CouETs OF Recoed, [Rule 32 The decision of a referee who sees the witness, made upon conflicting evidence, should be sustained. (Solomon v. Continental Fire Ins. Co., 28 App. Div. 213 [1898].) Findings of court sustained by evidence — not reversible on facts by the Appellate Division.] Where the findings of the trial court were in accordance with the conceded facts, or the uncontroverted testimony, the Appellate Division is not authorized to reverse upon the facts; if it does, a question of law is presented which the Court of Appeals may properly review. (Benedict V. Arnoux, 154 N. Y. 715 [1898].) Reviewing findings.] Tlie findings of a referee on questions of fact should not be disturbed unless it appears that the proof so clearly pre- ponderates in favor of a contrary conclusion that it can be said with reason- able certainty that the referee erred in his conclusions. (Sayles v. DeGraff, 82 Hun, 73 [1894]; Eingle v. The Wallis Iron Works, 86 id. 153 [1894].) Reviewing verdict.] An appellate court will not set aside the verdict of a jury rendered upon conflicting evidence, on the ground that improper testimony was admitted, unless it appears that the result would have been difi^'erent had the testimony objected to been omitted. (Van Epps v. Harnes, 88 Hun, 229 [1895].) Filing exceptions to findings not necessary where there is a certificate.] Where there is a certificate that the case contains all the evidence, it is not necessary on appeal to the Appellate Division that appellant file exceptions to the findings of fact. (Watts v. Bd. of Education, 9 App. Div. 143 [1896].) In Court of Appeals.] While the determination of the General Term upon all questions as to the weight of evidence is final and not reviewable in the Court of Appeals, where there is no conflict in the evidence, or that which appears to be in conflict is but a mere scintilla, or is met by well-known and scientific facts about which there is no conflict, the Court of Appeals may review the decision, if contrary to the evidence, and reverse it. (Hudson v. Rome, Watertown & Ogdensburg R. R. Co., 145 N. Y. 408 [1895].),, Court of Appeals cannot correct a case which contains an improper finding of fact. (B. 0. H. Co. v. City of Binghamton, 156 N. Y. 651.) Findings of fact sustained by evidence, not reviewable in the Court of Appeals.] The Court of Appeals, when a referee has found facts and his findings have been afiirmed by the General Term, will not review such findings if there is any evidence to support them. (I'otter v. Carpenter, 71 N. Y. 74; Bryce v. Lorillard Fire Ins. Co., 55 id. 242 [1873].) Question of fact in Court of Appeals — when it cannot be raised.] No question can be raised in the Court of Appeals upon a matter of fact, in a case tried by a referee, as to which no facts were found by the referee or requested to be found. (Stewart v. Morss, 79 N. Y. 629 [1880].) When on appeal from a Surrogate's Court, the facts will not be reviewed.] On an appeal from a judgment of the General Term affirming a decree of the surrogate admitting a will to probate, the Court of Appeals will not review questions of fact as to which there is conflicting evidence. (Hew- lett V. Elmer, 103 N, Y. 156 [1886].) Eule 32] General Eules of Peactice. 199 Fact, when found by the Court of Appeals.] A fact may be supplied by the Court of Appeals from the evidence to sustain, but for the purpose of reversing a judgment. (Eq. C. 0. F. Co. v. Hersee, 103 N. Y. 25 [1880]; Everson v. City of Syracuse, 100 id. 577 [1885]; Ostrander v. Hart, 130 id. 406 [1892].) Appeal on judgment-roll alone.] Where an appeal is heard upon a judgment-roll alone, the question to be determined by the appellate court is, whether in any view of the facts found the judgment rendered was properly ordered. (Kineaid v. Kinoaid, 85 Hun, 141 [1895]; First National Bank of Syracuse v. N. Y. C. & H. R. R. R. Co., Id. 160 [1895].) What is not a finding of fact.] A finding that plaintiff failed to estab- lish his case by a fair preponderance of evidence is not a finding of fact within the meaning of section 1022 of the Code, although so designated in the de- cision. (Franek v. Franck, 11 Misc. Rep. 569 [1895].) A conclusion of law construed to be a finding of fact.] Where the defense to an action of foreclosure was a general denial and the evidence is not in the record, the appellate court may assume that a conclusion of law that the defendant was not in default was a finding of fact. ( Mutual Benefit Loan & Building Co. v. Jaeger, 34 App. Div. 90 [1898].) Findings in State court conclusive on appeal to United States court.] {15 Albany Law Journal, 267.) CASE — Requisites of a case.] A case on appeal must contain so much of the evidence, and other proceedings upon the trial, as is material to the quee- tions to be raised thereby, and also the exceptions taken by the party making the case; and in a case where a special question is submitted to the jury, or the jury has assessed damages, such exceptions taken by any party to the action as shall be necessary to determine whether there should 'be a new triil in case the judgment shotild be reversed. It is not necessary to state in a case that a finding upon the facts or a rul- ing upon the law was made where the finding or ruling appears in a referee's report, or in the decision of the court upon a trial by the court without a jury. (Code of Civil Procedure, § 997.) Practice as to making.] As to the manner of reviewing the decision of a judge or referee, and the making and settling of a case and exceptions, see The People v. Albany & Susquehanna Railroad Company (57 Barb. 204 [Gen. T. 1879], and the note of Mr. N. C. Moak at page 210.) Who to pre- pare it. (Luce V. Morison, 2 Law Bulletin, 95 [1880].) Contents of case.] What should be contained in the case, considered. (Dainese v. Allen, 14 Abb. [N. S.] 363 [N. Y. Supr. Ct. Gen. T. 1873.] Exceptions to findings of fact present no question for review where no case has been made containing the evidence. (Drake v. N. Y. Iron Mine, 156 N. Y. 90 [1898].) The opinion of the court below forms no part of the record, and cannot be referred to in order to show the grounds of the decision. ( Randall v. N. Y. El. R. R. Co., 149 N. Y. 211 [1896] ; Lounsbury v. Duckrow, 22 Misc. Rep. 434 [Onondaga County Ct. 1898].) A copy of the account, served in pursuance of a demand therefor, if not 200 CouETs OF Eecoed. [Rule 32 put in evidence, is no part of the record. (Spies v. Michelson, 15 Misc. Rep. 414 [Sup. Ct. Tr. T. 1896].) When the omission of a colloquy between court and counsel will deprive the appellant of the right to review a most material circumstance, it is proper to insert it in the case. (Moroney v. Cole, 56 Misc. Rep. 454.) RemarliS of coimsel and court concerning the admissibility of evidence should not appear in the case where everything necessary to show the objec- tion, the grounds of the same, the ruling of the court, and the exceptions, appear. (Davidson v. N. Y. City Ry. Co., 122 App. Div. 11; Pulcino v. Long Island R. R. Co., 125 App. Div. 629.) All findings made by court or referee must be incorporated in the formal decision directing entry of judgment or it will not be considered on the appeal. Requests to find are not to be inserted unless the court refuses to find. (Elterman v. Hyman, 117 App. Div. 519; People v. Brown, 118 id. 38; Selah v. N. Y. Times Co., Id. 384. See, also, Blewett v. Hoyt, 117 App. Div. 32.) Narrative form.] A case not settled where the evidence is not reduced to narrative fonn. (Donai v. Lutjens, 20 Misc. Rep. 221 [Sup. Ct. Sp. T. 1897].) Preparation of case necessary only through rules of practice — failure to serve case.] The rules of practice alone make the preparation of a case on appeal necessary, and a failure to serve a case does not fall within the pro- visions of Code of Civil Procedure (§ 1303) relative to mistakes or defects in perfecting an appeal. (Odell v. McGrath, 16 App. Div. 103 [1897].) Appeal by both parties — separate records.] Where both parties appeal and make up separate records, each must stand upon his particular record for the assertion of the legal rights to wliich he claims to be entitled. (Blaek v. Brooklyn Heights R. R. Co., 32 App. Div. 468 [1898].) Two independent cases cannot be incorporated in one appeal book.] The practice regulating the hearing of appeals does not permit two independent cases to be incorporated into one appeal book, but the record on each appeal should be printed by itself, so that independent judgment-rolls may be made up, embracing the papers and only the papers applicable to each. (Geneva & Waterloo Ry. Co. v. N". Y. C. & H. R. R. R. Co., 24 App. Div. 335' [1897].) A case essential to review.] In an action in which a judgment has been entered upon a verdict of the jury, directed by the court, upon appeal, in order that the General Term may review it as required by section 997 of the Code of Civil Procedure, a case must be prepared and settled. (John Douglas Co. V. Moler, 30 Abb. N. C. 293 [N. Y. City Ct. 1893] ; S. C, 3 Misc. Rep. 373].) Not necessary for review in all cases.] A party desiring to appeal from a judgment entered upon a decision of the court is not obliged to pre- pare a case to be settled, but he may file exceptions to the findings of the trial court upon questions of law and have liis appeal heard upon tliose exceptions. (Schwarz v. Wober, 103 N. Y. 658 [1886] Delaney v. Valentine, 11 App. Div. 316 [1896].) Where a formal case and exceptions is unnecessary.] A formal case and exceptions which show what proceedings were had before a referee are not Rule 32] Gekeeal Etjles of Peactice, 201 necessary in the case of a reference directed by an interlocutory judgment, to inquire and report; the appelUrnt must proceed exclusively under Rule 30 of the General Rules of Practice. (Crossley v. Adams, 55 St. Rep. 218 [X. Y. Supr. Ct. 1893].) What must be presented by a case in case of a sealed verdict.] Upon receipt of a sealed verdict for the defendant, one oi the jurors stated that he had changed his mind since the night before, whereupon the court directed a verdict for the defendant. The case upon appeal from the judgment entered thereon did not contain the testimony or the previous rulings of the court. Held, that, under the circumstances, the appellate court could not determine the correctness of the ruling, and the judgment could not be disturbed. (Walsh V. Manhattan Railway Company, 13 Jlisc. Eep. ,50'5 [1895].) Exception on trial.] Where any exception is taken at the trial, the party may make a case presenting such exception. ( Huff v. Bennett, 2 Sandf . 703 [Sp. T. 1850]; S. C, 2 Code R. 139.) Case to contain all that occurred on the trial.] All that occurred at the trial in regard to the requests to charge and exceptions to the same should be contained in the case on appeal. (N. Y. Rubber Co. v. Rothery, 29 St. Rep. 37 [Ct. Ap. 1890].) Case should contain a statement that it contains all the evidence.] In the absence of a statement in the case that the case on appeal contains all the evidence, the Appellate Division will presume that sufficient evidence was given to support the judgment. (Uhlefelder v. City of ilt. Vernon, 76 App. Div. 349.) It should contain all the colloquy between the court and counsel.] The case on appeal should set forth the whole of a colloquy between court and counsel, in which it is claimed that an admission was made by defendant's counsel, and not the conclusion of the court therefrom that such admission was made. (Cooley v. Trustees of the New York & Brooklyn Bridge, 36 App. Div. 520 [1899].) Order of stating evidence on appeal.] Where, on a trial before a referee, testimony taken upon a former trial was read in a different order from that in which it was contained in the record, and the parties concurred in recommend- ing the referee to examine it, in the order in which it was printed, held, that it should be so printed on appeal from the referee's decision. (Oreggs v. Day, 45 M Y. Supp. 309 [1897].) Case to state real facts.] A party has a right to have the case show the actual facts as they really happened on the trial. (Kamermann v. Eisner & Mendelson Co., 25 Misc. Rep. 405 [1898].) A paper not read should not be in the case.] An appraiser's certificate, which the trial judge states positively has not been read or used in evidence, and has, therefore, not influenced the jury, should not be included in the record of a case on appeal. (McManus v. Western Assurance Co., 40 App. Div. 86 [1899].) Intelligent index.] Where, upon appeal, the attorney in making up his case presents an intelligible index, and indicates at the top of each page the nature of the contents thereof, the court is greatly facilitated in examining the testimony and exhibits. (Foster v. Bookwalter, 78 Hun,, 352 [1894].) 202 CoTJETs OF Eecobd. [Eule 32 An order striking out findings of court — when properly inserted in a case on appeal.] Exeeptions taken to the refusal of the court to find in accordance with a request are properly inserted in the case on appeal (Code Civ. Pro., § 997), and so an order striking them out, ■where it does not appear that they were not properly taken, is error. (Young v. Young, 133 K. Y. 626 [1892].) The error claimed must appear in the record.] To be available for reversal the error must appear from record. (Hughes v. Hughes, 10 ilisc. Rep. 180 [1894].) Failure to print exhibits as directed by the court, is irregular.] A statement in a case on appeal, concerning exhibits, " the plans bearing the stenographer's mark not having been produced though demanded, the appellant has been unable to print the same," interpolated in the place of the trial judge's direction " here insert the same," held, irregular and (the case recalled for correction. (McCrcady v. Lindenborn, 24 Miso. Rep. 606 [1898].) Necessity of incorporating rejected documents.] Where a resolution of a corporation is in writing, if the corporation desires to offer it in evidence in an action in which it is a defendant it should produce it, and if it is rejected, should have it marked for identification and incorporated in the case on appeal, so that the court can determ.ine upon the aippeal whether it was competent. Where an offer is made by a corporation to prove the substance of such a resolution, which is objected to, it is proper for the referee to rule that the offer is improper, and that the corporation should offer the resolution and have it marked for identification in case it be rejected. (Mengis v. Fifth Avenue Railway Company, 81 Hun, 480 [1894].) Omitting letters submitted to the jury.] Wlien a judgment has been rendered in an action in which there has been conflicting evidence in regard to whether there was simply a delivery of chattels for trial or a sale, upon ap- peal, if the case does not contain letters submitted to the jury relating to the subject, an order reversing the judgment will not be granted. (Sloane v. Lockwood Chemical Co., 45 St. Rep. 265 [Brooklyn City Court, 1892].) Absence from case of papers covered by the certificate is no ground for dismissing appeal. (Rosskam v. Curtis, 15 App. Div. 190 [1897].) Omitting cumulative evidence.] When upon appeal in the defendant's case a statement appears that " this case does not contain all the evidence taken at the trial; there was additional evidence for the defendant which was ciimulative," it will be presumed that evidence which does not appear in the case sustained the facts found. (Guion v. Mundy, 45 St. Rep. 667 [N. Y. Com. PI. 1892].) Case presenting only questions of law — insertion of all the evidence in, not proper.] In the settlement of a bill of exceptions, only so much of the evidence as may be necessary to present the questions of law upon which the exceptions were taken upon the trial should be inserted, and where, on the settlement of the exceptions, the evidence has been unnecessarily inserted and the expense of the appellant to print and present his case thereby increased, an appeal lies from an order denying a motion for a resettlement made for Eule 32] General Eules of Peactice. 203 the purpose of excluding such unnecessary evidence. (Marckwald v. Oceanic Steam Nav. Co., 8 Hun, 547 [Gfen. T. 1876]; 3 N". Y. Wkly. Dig. 401.) Case upon specific exceptions or questions only.] The appellant has the right to make up a case on appeal upon specific exceptions or questions, and to print only such evidence as relates thereto. (Firth v. Eehfeldt, 47 N. Y. Supp. 474 [1897].) Appeal upon the juflgment-roll alone.] Where the appeal In an action is heard upon the judgment-roll therein it is incumbent upon the appellant, in order to succeed, to show that the trial court could not, in any view of the facts found, properly order a judgment for the respondent. (Primeau v. National Life Assn., 77 Hun, 418 [1894].) To review legal questions a case need not contain all the evidence.] Where a finding of fact by a court or referee is without evidence to support it, it is a ruling upon a question of law (Code Civ. Pro., § 993),* and if ex- cepted to presents a legal question which is reviewable upon appeal. It is not necessary for the purposes of such review that the case should show that it contains all the evidence. (Halpin v. Phoenix Ins. Co., 118 N. Y. 165 [1890]; Israel v. Manhattan R. Co., 158 N. Y. 624 [1899].) A bill of exceptions should contain a concise statement of facts.]- A bill of exceptions should contain only a concise statement of facts present- ing the points intended to be relied upon as ground of error, or simply so much of the evidence as may appear to be requisite for that purpose. (Tweed v. Davis, 1 Hun, 252 [Gen. T. 1874] ; Price v. Powell, 3 N". Y. 322 [1850].) It should not contain questions withdrawn, answers excluded, or testimony not necessary to raise the questions on the exceptions. (Hoffman v. .35tna Fire Ins. Co., 1 Rob. 501 [1863]; S. C, 19 Abb. 325.) Exceptions and introductory statement of proceedings, without the evi- dence.] On an appeal from a judgment entered upon the report of a referee, the appellant served a case for argument containing an introductory statement of the proceedings in the cause, the notice of appeal, the judgment record, con- taining the referee's report and the exceptions filed thereto, but not contain- ing the evidence. Held, that the practice of the appellant was correct. A motion to strike out the exceptions aijd introductory statement in the case was denied. (Davie v. Van Wie, I N". Y. Sup. Ct. 530 [G'en. T. 1873].) Respondent presumed to have had inserted all the testimony necessary to sustain the rulings.] Upon an appeal from a judgment dismissing a com- plaint, the Appellate Division, in the absence of a certificate that the case contains all the evidence, will assume that the respondent has procured to be inserted therein all the testimony deemed essential to sustain the ruling. (Hewett v. Town of Thurman, 41 App. Div. 6 [1899].) Evidence omitted from proposed case — duty of respondent to supply.] If the party making up the case omits any evidence, it is the duty of the other party, if he deems the evidence material to sustain the findings, to cause it to be inserted by amendment. (Tomlinson v. The Mayor, 44 N. Y. 601 [1871]; Wescott V. Fargo, 6 Lans. 325 [Gen. T. 1872]. See West v. Wright, * Repealed by chapter 946 of 1895. 204 CotTBTs OF Eecoed. [Eule 32 86 Hun, 436 [1895] ; Porter v. Smith, 35 Hun, 118 [1885] ; Burrows v. Dickin- son, 115 N. Y. 672 [1889]; Kissam v. Kissam, 21 App. Div. 142 [1897].) Papers omitted from case — presumption.] Papers on which the origi- nal order was made, and on which the motion for reargument was founded which were recited in the order appealed from, did not appear in the record. Held, that the General Term would assume that they sustained the order of the Special Term, which should 'be affirmed. (Matter of McBride, 90 Hun, 259 [1895].) Rulings on questions of law — what is notice to the respondent.] As to the rulings on questions of law, there is no need that the case on appeal should affirmatively show that it contains all the evidence received at the trial, and since an exception to the denial of a nonsuit raises a question of law, and serves as a notice to the respondent of an intention to raise the question of error on the ruling excepted to, and puts upon him the responsibility of supplying the requisite proof by amendment to the case. (Miner v. Edison Electric 111. Co., 22 Misc. Rep. 543 [N. Y. City Ct. 1898].) When the case need not contain all the testimony, etc.] It is not neces- sary that the appellant's case contain all the testimony and exhibits if it shows the objection to the tax which he wishes to have set aside. (Matter of Byrnes, 34 St. Eep. 332 [Sup. Ct. 1890].) Certificate not necessary to obtain review of rulings of the trial judge, or of his charge.] A certificate that the case contains all the evidence is not necessary to entitle the appellant in an action which was tried before a jury, to review exceptions to the rulings of the trial judge or to his charge, although based upon the insufficiency of the evidence. (Rosenstein v. Fox, 150 X. Y. 354 [1896].) Failure of certificate to state that it contains all the evidence — what errors of evidence reviewed.] Where the certificate does not state that it con- tains all the evidence, only errors in the admission or exclusion of evidence are open to review, and if none appear, the findings of fact are conclusive. ( Fleck V. Rau, 9 App. Div. 43 [1896].) Case not containing the evidence — review limited to errors of law.] Where the case on appeal to General Term from a judgment entered upon the report of a referee does not contain the evidence tlie General Term cannot review the case upon the facts, as they are not before it, and its order of reversal must be based on assumed errors of law, and the right to review in the Court of Ap'peals is necessarily confined to such errors of law. (Billings V. Russell, 101 N. Y. 226 [1886].) Appeal heard on judgment-roll — no evidence printed.] Where an appeal is heard on the judgment-roll, the evidence not being printed, the appellants must show that the trial court could not in any view of the facts found properly order a judgment for respondent. (ilcCabe v. O'Connor, 4 App. Div. 354 [1896]. See Kincaid v. Kincaid, 85 Hun, 14 [1895]; First Nat. Bk. of Syracuse v. N. Y. C. & H. R. R. R. Co., Id. 160 [1895].) A direction of a nonsuit may be reviewed, though the record does not show that the case contains all the evidence. (Zimmerman v. Union R. Co., 3 App. Div. 219 [1896].) 'Eule 32] General Eules of Psactice. 205 Failure to print in a case letters objected to — exception to their exclu- sion unavailing.] Where letters are objected to as immaterial, and excluded, and are not 'printed in the case on appeal, the appellate court has nothing from which to determine their materiality, an-d an exception to their exclusion is unavailing. (Eanson v. Wheelwright, 19 Misc. Rep. 106 [Sup. Ct. App. T. 1897]. See, also, as to postal cards, Reading Braid Co. v. Stewart, 20 id. 86 [Sup. Ct. App. T. 1897].) What is a sufficient statement of evidence.] A proposed case and exceptions stating "evidence was offered by the plaintiff tending to prove, etc.," followed by a statement of the evidence received, the objection thereto and the ruling thereon, held to be sufficient within the Code of Civil Procedure, § 997, since the point raised was clearly intelligible, and respondent, if the statement did not conform to the facts as they appeared at the trial and upon which the ruling is based, should propose an amendment. (Hubbard v. Chap- man, 28 App. Div. 577 [1898].) Effect of its failure to state that the case contains all the evidence.] Failure of the case to state that it contains all the evidence does not pre- clude the appellate court from considering an exception to a refusal to dis- miss at the close of plaintiff's case, as the motion therefor was notice that defendant intended to question the sufficiency of the proof, and it then became plaintiff's duty to see that the case contained all that was necessary to sus- tain the ruling. (Miner v. Edison Electric Illuminating Co., 26 Misc. Rep. 712, affg. 22 i-d. 543 [1899]. See Hewett v. Town of Thurman, 41 App. Div. 6 [1899]; Tomlinson v. The Mayor, 44 N. Y. 601 [1871]; Westoott v. Fargo, 6 Lans. 325 [Gen. T. 1872].) Where there is no certificate and no order denying motion for new trial, only questions of law are considered. (Beebe v. N. Y. & N. E. R. R. Co., 91 Hun, 294 [1895]. See, also, McNish v. Village of Peekskill, 91 id. 324 [1895].) When the case does not contain the evidence.] If the case embraces no evidence, but only the facts found and the conclusions of law, the presump- tion is that there was no evidence from which any other facts could be found, and the only question raised on exceptions to the conclusions of law is whether they are justified by the facts found. (Stoddard v. Whiting, 46 X. Y. 627 [1871]; Norton v. Matthews, 11 Misc. Rep. 711 [N. Y. Supr. Ct. 1895]; Drake v. N. Y. Iron Mine, 89 Hun, 280 [1895].) What will be considered, when the entire record is a bill of exceptions, and the judgment-roll.] Wlien the whole record is a bill of exceptions annexed to a judgment-roll, all the evidence not being before the court, only the excep- tions taken at the trial are to be considered. (Cox v. Davis, 8 App. Div. 491 [1896].) Errors of law considered when no certificate is made.] When there is omitted from the case on appeal the certificate that all the evidence is con- tained therein, the court may review the error of law involved by a verdict without evidence. (Robbins v. Downey, 45 St. Rep. 279 [N. Y. Com. PI. 1892].) No review of the facts without such a certificate.] (Evans v. Howell, 75 Hun, 199 [1894]; Root v. Strang, 77 id. 14 [1894]; Webster v. Kings 206 CouETs OF Eecokd. [Eule 32 County Trust Co., 80 id. 421 [1894] ; Levi v. Newhall, 30 St. Rep. 283 [N. Y. Supr. a. 1890]; Claflin v. Flack, 36 id. 728 [N. Y. Com. PI. 1891]; Hinds v. Kellogg, 37 id. 356 [N. Y. Com. PI. 1891] ; Fultz v. Paul, 38 id. 125 [Sup. Ct. 1891]; Clark v. House, 40 id. 956 [Sup. Ct. 1891]; Culliford v. Gadd, 44 id. 22 [N. Y. Supr. Ct. 1892] ; Momeyer v. N. Y. Sheep & Wool Co., 49 id. 414 [Sup. Ct. 1892] ; Brooker v. Filkins, 9 Misc. Rep. 146 [N. Y. Com. PI. 1894] ; Brown v. James, 9 App. Div. 139 [1896] ; Sandiford v. Frost, 9 id. 55 [1896] ; Hedges v. Polhemus, 14 Misc. Rep. 309 [N. Y. Com. PI. 1895] ; Murray V. Babbitt, 10 id. 365 [N. Y. Com. PI. 1894] ; Gage v. Lippman, 12 id. 93 [N. Y. Com. PI. 1895]; Button v. Kinnetz, 88 Hun, 35 [1895]; Brown v. Fishel, 83 id. 103 [1894]; Jagau v. Goetz, 11 Misc. Rep. 380 [N. Y. Com. PI. [1895]. See Certificate, post, p. 210.) Where there is no certificate, respondent is entitled! to assume that no review of questions of fact will be demanded. (West v. Wright, '86 Hun, 436 [1895].) Questions of law reviewable, though there is no evidence in the case.] The questions of law are reviewable on the facts found, though no evidence is contained in the case. (Ferguson v. Hamilton, 35 Barb. 427 [Gen. T. 1862]. See Bissel v. Pearse, 21 How. Prac. 130 [Gen. T. 1861]; Dainese v. Allen, 14 Abb. [N. S.] 363 [X. Y. Supr. Ct. Gen. T. 1873].) Printing report and all findings.] The referee's report and all findings must be printed upon appeal, so that it may be determined by the court whether the referee has .passed upon all the requests to find. (Thompson v. McCaldin, 27 N. Y. St. Rep. 619 [Sup. Ct. 1889].) Immaterial letters not to be printed in the case.] Tt is proper to omit the printing in a case on appeal of immaterial letters. (De Klyn v. Silver Lake Ice Co., 36 N. Y. St. Rep. 84 [Supr. Ct. 1891].) Affirmed, without opinion, in 128 N. Y. 582. Further findings — proceedings to obtain, may be inserted in the case.] Upon an appeal from the judgment, the proceedings to obtain further findings can be inserted in the record, and the materi..lity of the findings asked for can be reviewed at General Term and in the Court of Appeals, (ileacham v. Burke, 54 N. Y. 220 [1873] ; Woodhull v. Rosenthal, 61 id. 382 [1875].) Respondent's exceptions — not to be in case.] A case should not con- tain exceptions taken by the respondent, except in peculiar cases. (Dabney v. Stevens, 10 Abb. [N. S.] 39 [Sup. Ot. Gen. T. 1870]; affd., 46 X. Y. 681; Matter of Levy's Will, 91 App. Div. 483; affd., 179 N. Y. 603.) Respondent's exception — when he may insist that it be disregarded.] While a respondent can have no benefit from his exception to the admission of incompetent evidence offered by appellant and received by the trial court, he may, on appeal, insist that it be disregarded in considering whether appellant made out a case. (Winne v. Hills, 91 Hun, 89 [1895].) Judge's charge.] The judge's charge should not be inserted in extenso. (Bulkeley v. Keteltas, 4 Sandf. 450 [Gen. T. 1851].) The charge not to be put in a case, unless excepted to.] If no part of the charge is excepted to, the charge should not be included in the case on appeal. (Shook v. O'Neil, 1 Law Bulletin, 38 [N. Y, Com. PI. Sp. T. 1879].) Eule 32] General Eules of Peaoticb. 207 Alleged portions of charge stricken out — error cured by stipulation.] An error, if any, in refusing to resettle a case on appeal by striking out alleged portions of the charge is cured by stipulation that the appeal be heard without reference to the matter sought to be expunged, and that the case be deemed amended so as to conform to the contention of the moving party. (Dearing v. Pearson, 8 Misc. Rep. 277 [N. Y. Com. PI. 1894].) Statement as to the time of commencement of the action.] On the resettlement of a case, even if a point raised at the trial might be affected by a positive statement of the time of the commencement of the action, the v?ords "on or about" may be inserted, and are sufficient to conform to Eule ^To. 41 of General Rules of Practice. (James v. Work, 51 N. Y. St. Rep. 323 [Sup. Ct. 1893].) A statement of facts in the opinion, to be printed.] Statements of facts in the opinion may be required to be printed in the case on appeal, in order that the Appellate Division shall be informed of the view of the facta upon which the trial judge has based Ms legal conclusions. (McManus v. Western Assurance Co., 40 App. Div. 86 [1899].) The case must show plainly the erroneous ruling.] It is the duty of the appellant, in making up his case, to show plainly that an erroneous ruling was made adversely to him, and not leave that fact to appear by inference or conjecture. (Clark v. Donaldson, 49 How. Prac. 63 [Gen. T. 1874].) Limit imposed upon plaintiff's case on the trial.] The objection that a plaiaitiil had so limited his case on the trial as to preclude his adopting one theory of it consistent with his pleadings must, in order to be taken advantage of on appeal, appear affirmatively in the case. (Hazewell v. Coursen, 81 N. Y. 630 [1880].) VHiere pleadings do not conform to the evidence.] Although the plead- ings do not conform to the evidence, if the facts in the case prove a good cause of action and no objection is made to the evidence, the case may be dis- posed of on appeal, as though the pleadings had been amended on trial. (Tisdale v. Morgan, 7 Hun, 583 [1876].) See, also, Howell v. Grand Trunk R. Co., 92 id. 423 [1895]. When a referee's findings of fact are to be reviewed as being against the weight of evidence — as having no evidence to support them.] Where a party appealing from a judgment, entered upon the report of a referee, desires to raise in the appellate court the question that any finding of fact is against the weight of evidence, he must have the case bo prepared as that it shall appear therefrom that all the evidence bearing on the finding of fact sought to be reviewed, is set forth therein. Where, however, he claims that a par- ticular finding of fact is without any evidence to support it, and he has ex- cepted thereto as provided in section 993* of the Code of Civil Procedure, thereby presenting for review only a question of law, it is unnecessary to state in the case that all the evidence bearing on such finding is set forth therein. (Spence v. Chambers, 39 Hun, 193 [Gen. T. 1886].) When motion for new trial made.] A motion for a new trial for error in the finding of fact, must be made .before the expiration of the time within * Repealed by chapter 946 of 1895. 208 CoDETs OF Eecoed. [Rule 32 which an appeal can be taken from the judgment, i. e., within thirty days after service of a copy of the judgment entered. (Heath v. N. Y. Bldg. Loan Banking Co., 91 Hun, 170 [1895].) Motion for a new trial of an issue of fact after entry of an inter- locutory judgment can only be made upon a case and exceptions.] A motion at General Tenn, after the entry of interlocutory judgment, for a new trial of an issue of fact tried by the court without a jury, or by a referee, when excep- tions taken to rulings are sought to be reviewed, mxist be made upon a case and exceptions which must be settled and signed by the judge or referee by or before whom tlie action was tried, as prescribed by the General Rules of Prac- tice. (Green v. Roworth, 4 Misc. Rep. 141 [X. Y. Com. PI. 1893].) Motion for new trial in an equity action — made when application is ruade for final judgment.] Where specific issues liave been tried in an equity snit, and a motion for a new trial on the minutes has been made and denied, the party moving may again make a motion for a new trial on a case and exceptions, when application is made at Special Term for final judgment. (Anderson v. Carter, 24 App. Div. 462 [1897].) A party moving for a new trial must make a case and procure its settlement. (Bantleon v. ileier, 81 Hun, 162 [1894].) Motion not heard on evidence alone, unless by consent. (Boyd v. Boyd, 11 Misc. Rep. 357 [1895].) A case is necessary, when motion is made on ground of newly-discovered evidence. (Harris v. Gregg, 4 App. Div. 615 [1896].) Question of fact — how presented at the General Term.] In order to present a question of fact at tlie General Term, on appeal from the Special Term, there should either be a finding of fact together with a conclusion of law tliereupon, and an exception thereto, or a request to find thereupon, and an exception to a refusal so to find. (Pm-dy v. Purdy, 9 N. Y. Wkly. Dig. 425 [Gen. T. February, 1880].) Appellate Division — when cannot reverse on the facts.] A judgment cannot 'be reversed on the facts where all the facts are of record and uneon- troverted. (Westerfeld v. Rogers, 174 N. Y. 230 [1903].) What necessary for review in Court of Appeals.] When there is neither a case made or settled showing that any question was raised nor any exceptions taken, nor a report of a referee or findings of the court with excep- tions, the Court of Appeals has no jurisdiction to entertain the appeal. (Smith V. Starr, 15 Alb. Law J. 514 [Court of Appeals, 1877]. When order of Appellate Division reviewable by Court of Appeals.] An order of the Appellate Division reversing an order of tlie Surrogate's Court directing tlie continuation of a proceeding for a compulsory accounting, etc., is a final order and reviewable by the Court of Appeals, (ilatter of Fitz- simmons, 174 N. Y. 15 [1903].) Unanimous approval of a finding of fact by the Appellate Division is conclusive upon Court of Appeals.] A finding as to the law of a foreign State, if unanimously approved by the Appellate Division, is conclusive upon the Court of Appeals. (Spies v. Nat. Bank, 174 N. Y. 222 [1903].) Rule 32] Geneeal Eules of Practice. 209 Appeal to Court of Appeals from order granting new trial — appellant must attend to exceptions.] Upon appeal to the Court of Appeals, from an order granting a new trial, the appellant takes the risk of every exception appearing upon the record, and the respondent may sustain the order by show- ing any legal error upon the part of the trial court. ( Foster v. Bookwalter, 152 N. Y. 166 [1897] ; Durland v. Durland, 153 id. 67 [1897].) Contents of case on appeal.] In a case where a verdict is rendered by direction of the court and a motion to set aside such verdict is subsequently granted and an appeal taken from such order to the Appellate Division, upon which appeal a case and exceptions are settled, it is not necessary upon appeal to the Coorrt of Appeals from the reversal of such order by the Appellate Divi- sion to prepare a new case as required by Code of Civil Procedure, section 1339. (South Bay Co. v. Howey, 190 N. Y. 240, revg. 113 App. Div. 382.) When an appeal will not be considered.] In an equity suit the court will not consider an appeal when the record discloses no findings signed by the judge, but merely conclusions of law unsigned. (Simis v. MoElroy, 38 N. Y. St. Rep. 3 [Sup. Ct. 1891].) " Minutes of referee " attached to a judgment-roll — not considered on appeal.] Where, on appeal from a judgment, the papers contain the judg- ment-roll and what purported to be a copy of a paper indorsed " minutes of referee," but there was no evidence that it had been settled or signed, held, that such paper could not be considered on the appeal. (Albright v. Riker, 11 N. Y. Wkly. Dig. 27 [Gen. T. 1880].) The clerk's minutes cannot be used to indicate the legal questions raised upon the trial, or the grounds of the decision.] Where a case as settled stated the grounds upon which a motion to dismiss the complaint was made and granted, held, that this was controlling and that the respondent could not refer to the clerk's minutes, although incorporated in the record, to show that the motion was also based upon other grounds than those stated in the case, but it was held that the respondent had the right, in support of the judgment, to urge any sufficient ground appearing from the record which he might have raised in the court below, provided it could not have been obviated had it been raised on the trial. (Scott v. Morgan, 94 N. Y. 508 [1884].) Appellant not bound to print matter in the case on appeal to the Court of Appeals disallowed by the trial judge.] An appellant is simply bound to present his case to the General Term upon the case as settled, and to the Court of Appeals upon the same record; he is not bound to print matter pro- posed by the respondent as an amendment to the case, but disallowed by the trial judge, who, however, required the appellant to paste certain exhibits in the appeal book if they were furnished by the respondent. ( Kilmer v. New York Central & Hudson River R. R. Co., 04 N. Y. 495 [1884].) Evidence — prima facie, of the facts stated.] After a case or excep- tions has been settled and filed with the clerk it may be taken, in the further progress of the action, as prima facie evidence of the facts therein stated. (Van Bergen v. Ackles, 21 How. Prac. 314 [Sp. T. 1861]. See, also, Howell V. Grand Trunk R. Co., 92 Hun, 423 [1895].) 14 210 Courts of Eecoed. [Eule 32 Settlement of case by trial judge.] The reoollection of the trial judge as to a colloquy in the trial is conclusive in the Appellate Division. (Burke V. Baker, 104 App. Div. 36. ) Amendment.] In settlement of case and exceptions, an amendment is not allowable on the ground that an exception it is proposed to strike out was not worthy of consideration in the appellate court. Such conclusion is not within the province of the trial court. (Brauer v. N. Y. City Inter. Ry. Co., 129 App. Div. 384.) In a case where trial justice prior to his death settled the case on appeal as stipulated by counsel, court is empowered upon subsequent application to allow an amendment of the same, although different from stenographer's m.inut6S, when the fact is clearly and satisfactorily established to the satis- faction of the court. (McMahon v. D., L., etc., E. R. Co., 116 App. Div. 532.) CERTIFICATE — Necessary to a case reviewing facts.] In the absence of a certificate in the uppeal book that the case contains all the evidence taken at the trial, the respondent is entitled to rely upon ihe presumption that there was no intention to ask for a review of the rulings' on the question of fact. (West V. Wright, 86 Hun, 436 [1895]. See ante, pages 205, 206. It is conclusive.] The settlement by the trial judge of the case on appeal upon a dispute as to what occurred, is conclusive. (Balz v. Shaw, 11 Misc. Rep. 444 [1895]'.) A case should state that it contains all the evidence.] (Beach v. Yates, 1 Sup. Ct. R. [T. & C], addenda 21* [Gen. T. 1873].) Statement that the case contains all the evidence — when proper.] A statement that it contains all the evidence given upon the trial, will not be inserted unless the object is to move for a new trial upon the ground of a misdirection which was not the subject of an exception. (Jlagnus v. Trischet, 2 Abb. [N. S.] 175 [Sp. T. 1866].) Case must purport to contain all the evidence.] Upon appeal the weight of the evidence or the good faith of the witnesses will not be consid- ered unless the case purports to contain all the evidence. (Schuler v. Third Ave. R. R. Co., 1 Misc. Rep. 351 [N. Y. Com. PI. 1892] ; Hyland v. Anderson, Id. 377 [N. Y. Com. PI. 1892] ; Gaylord v. Gallagher, Id. 328 [N. Y. Com. PI. 1892]; Davey v. Lohemann, Id. 317 [N. Y. Com. PI. 1892 J.) This does not apply to a jury trial. (Rosenstein v. Fox, 150 N. Y. 354 [1896].) A certificate which covers " all testimony given, all the exhibits of the parties and all the proceedings had upon the trial."] A certificate attached to a case on appeal, stating that it contains " all testimony given, all the exhibits of the parties, and all the proceedings had upon the trial," is equiv- alent to a certificate that the case contains all the evidence bearing upon any disputed question of fact. (Orcutt v. Rickenbrodt, 42 App. Div. 238 [1899].) Certificate that it contains all the material evidence.] An appeal will not be dismissed for the reason that no certificate is attached to the case stating that it contains all the evidence, when a statement is made that it contains all the material evidence upon the matters therein involved. (Mat- ter of Chapin, 84 Hun, 490.) Kule 32] General Eules of Peactice. 211 When all the material evidence appears a certificate is proper.] The case on appeal should contain all the evidence material to the questions to be decided by the appellate court, and amendments may be proposed by the respondent, but the appellant should be allowed a certificate that the case contains all the evidence, unless the attention of the judge has been called to the omission of material evidence. (Kenwick v. N. Y. Elevated R. R. Co., 36 St. Rep. 682 [Sup. Ct. 1891].) Where appellant should be allowed to insert a statement.] Where re- spondent concedes that in fact the case on appeal contains all the evidence, appellant should be allowed, as a matter of favor, to amend the case by inserting a statement to that effect. (Martin, Ring & Co. v. Baust, 23 App. Div. 234 [1897].) Certificate does not imply that the evidence is word for word.] A cer- tificate that all the evidence is contained in the ease on appeal means that all the material evidence is presented to the court, and not that the case contains word for word what was given on the trial. (Ren wick v. N. Y. Elevated R. R. Co., 36 St. Rep. 682 [N. Y. Sup. Ct. 1891].) In the absence of a statement that a case contains all the evidence upon a question sought to be reviewed, the court, on appeal, may determine that there was no evidence to support any finding of fact duly excepted to. (McEntyre v. Tucker, 5 Misc. Rep. 228 [N. Y. Com. PI. 1893].) What is a sufScient certificate.] A certificate on appeal which recites " the foregoing case contains all the evidence relating to the matters con- tained in said case and bill of exceptions," held sufficient when, as in the ease at bar, only a portion of the cause of action or of the defenses litigated on the trial are brought up for review. (Oaksmith v. Baird, 19 App. Div. 334 [1897].) A stipulation that a case contains all the "oral evidence" is not suf- ficient. (Matchett v. Lludberg, 2 App. Div. 340 [1896].) That the case contains all the evidence bearing upon the exceptions.] On appeal from a judgment entered on the report of a referee the certificate annexed to the case was as follows: "The annexed case contains all the evi- dence bearing upon the exceptions given (taken) upon the trial." Held, sufficient to bring up for review exceptions to refusals of the referee to find facts as requested. (McEntyre v. Tucker, 5 Misc. Rep. 228 [N. Y. Com. PI. 1893].) Minutes of testimony and proceedings on the trial, sufScient.] The evidence should not be reviewed when upon appeal the case contains no certificate that all the evidence is before the court, but does contain a state- ment that " the foregoing are the minutes of all the testimony taken and proceedings had on the said trial." (De Mott v. Hendriok, 47 St. Rep. 731 [Sup. Ct. 1892].) When the minutes of trial signed by the clerk are a sufficient certifi- cate. (Sedgwick v. Macy, 24 App. Div. 1 [1897].) Qumre, whether a certificate that the case contains " all the testimony taken on the appeal" is sufficient. (Zimmerman v. Union Ry. Co., 3 App. Div. 219 [1896].) 212 CouETs OF Eecoed. [Rule 32 What statement is insufficient to constitute a proper certificate.] Ihe statement in a ease that the " foregoing is a complete record of all the tes- timony taken on the trial of the above-entitled action, and is a true record of all the proceedings thereat," is not equivalent to the statement that the "case contains all the evidence adduced at the trial," and is insuflBcient to allow of a review of questions of fact. (Hannon v. Gallagher, 19 Misc. Rep. 347 [N. Y. City Ct. 1897].) A certificate that " the foregoing contents are all the testimony and proceedings taken on the trial of said action," held irregular. (Becker v. Fischer, 13 App. Div. 555 [1897].) Appellant's attorney's affidavit does not supply the place of a certifi- cate.] An affidavit of the appellant's attorney, annexed to the case, and stating that " the foregoing is all of the evidence given at the trial of the action in question," does not supply the place of the required certificate. (Gorham Mfg. Co. v. Scale, 3 App. Div. 515 [1896].) Exceptions to findings of fact not necessary where there is a certifi- cate.] Where there is a certificate that the case contains all the evidence, it is not necessary on appeal to the Appellate Division that appellant file excep- tions to the findings of fact. (Watts v. Bd. of Education, 9 App. Div. 143 [1896].) The Special Term may insert in a case a statement that it contains all the evidence.] When the statement, " The foregoing contains all the evidence upon the trial" has been omitted from a case on appeal through inadvert- ence, it is proper for the court at Special Term to permit its insertion for the purposes of a pending appeal to the Court of Appeals. (Barnard v. Gantz, 69 Hun, 104 [1893].) Upon extent of plaintiff's damages insufficient.] A statement in a case on appeal that " the foregoing presents all the evidence being upon the extent of the plaintiff's damages " is not equivalent to the statement that " the case contains all the evidence," called for by the rule, and does not authorize the appellate court to review alleged errors of fact. (Katz v. Koster, 6 Misc. Rep. 327 [N. y. Sup. Ct. 1893].) Absence of certificate prevents reduction of an exaggerated recovery by the Appellate Division.] Though the amount of the recovery appears from the evidence in the record to be exaggerated, the Appellate Division cannot reduce it or order a new trial in the absence of a certificate that the case contains all the evidence. (Hunt v. Webber, 22 App. Div. 631 [1897].) Testimony not equivalent to evidence.] Where documentary evidence has been omitted from the case on appeal, a statement in the case that it contains all the testimony given on the trial cannot be substituted for a statement that the case contains all the evidence. (Uppington v. Pooler, 47 St. Rep. 30 [Sup. Ct. 1892].) A statement in the record upon an appeal from a judgment that the same " contains all the testimony taken upon the trial in this action " is not equivalent to the statement that the case contains all the evidence, and in the absence of the latter statement the General Term is precluded from reviewing questions of fact. (Randall v. The New York Elevated Railroad Co., 76 Hun, 427 [1894]; Grening v. Malcom, 83 id. 9 [1894] ; Bonwell v. Auld, Eule 32] Genekal Eules of Pkactice. 213 9 Misc. Rep. 65 [N. Y. Com. PI. 1894], affg. 7 id. 447; McCarthy v. Gallagher, 4 id. 188 [N". Y. Com. PI. 1893]; Koehler v. Hughes, 73 Hun, 167 [1893].) The facts found by the trial judge are conclusive where the certificate in the case on appeal simply states that the case contains all the "testi- mony " given upon the trial. (Hyman v. Friedman, 45 St. Eep. 636 [N. Y. Com. PI. 1892].) The case must contain an order denying a new trial and a notice of appeal therefrom.] Where the papers in a case on appeal from a judgment entered on the verdict of a jury contain no appeal from an order denying a motion for a new trial, and no order is found denying such a motion, and the case does not show that it contains all the evidence given upon the trial, the appeal brings up for review only the exceptions taken upon the trial. (Dexter v. The Village of Fulton, 86 Hun, 433 [1895]; Eopes v. Arnold, 81 id. 476 [1894].) Appeal from a judgment and not from an order denying a new trial.] Where there is no appeal taken from the order denying a motion for a new trial, an appeal from the judgment brings up for review only the exceptions taken on the trial. (Wright v. Haskiu Wood Vulcanizing Co., 76 Hun, 340 [1894].) Where the appeal is from the judgment alone, the facts are not before the court for review. (Goodwin v. Brennecke, 21 App. Div. 138 [1897].) In its absence questions as to excessive verdict, etc., not considered.] Where the case on appeal does not contain a statement that it contains all the evidence taken on the trial, the appellate court cannot inquire as to whether or not the verdict is for excessive damages or against the weight of evidence, but is confined to any alleged errors of law that may have been committed on the trial. (Howe v. Woolsey, 7 Misc. Rep. 33 [N. Y. Com. PI. 1894]; Whiting v. Standard Gaslight Co., 83 Hun, 4 [1894]; Blaustein v. Guindon, Id. 5 [1894]; Grening v. Malcom, Id. 9 [1894]; Hunt v. Webber, 22 App. Div. 631 [1897].) Respondent not compelled to add testimony to enable a referee to certify that case contains all the evidence.] When a case on appeal, as settled by the trial referee after the submission of amendments by the respondent, does not contain all the evidence, and the referee is not then asked to certify that it does contain all the evidence, and the referee, on being thereafter asked by the appellant to order the case on file, is asked to certify that it contains all the evidence, it is improper to compel the respondent to add such testimony as may be necessary to enable the referee to make the desired certificate. (Martin v. Adams, 73 Hun, 122 [1893].) No particular form required.] No paT'ticular form of words that the case contains all the evidence is required for this statement, and where there is a statement in the record that it contains all the testimony, and both parties proceed to argument without any objection as to the power of the General Term over the whole case, the court is warranted in assuming that all the evidence is in the case and should pass upon the facts. (Dibble v. Dimick, 143 N. Y. 549 [1894].) 214 CouETs OF Eecoed. [Eule 32 Absence of a certificate precludes the appellate court from considering a motion for a new trial.] An omission from the ease on: appeal of a state- ment that it contains all the evidence precludes the appellate court from considering a motion for a new triffl on the minutes. (McAvoy v. Cassidy, 8 Misc. Rep. 595 [City Court of Brooklyn, 1894].) There can be no review of evidence by the General Term in the ■ absence of a certificate, and also of an appeal from an order denying a new trial. (Gregor v. McKee, 18 Misc. Rep. 613 [N. Y. City Ct. 1896].) Absence of certificate in action for negligence — questions not consid- ered by Appellate Division.] Where there is no certificate, and the case pur- ports only to include the testimony and proceedings necessary to present plaintiff's exceptions, it was held that the Appellate Division would not con- sider whether the trial court erred in submitting to the jury the questions as to whether plaintiff has sustained any pecuniary injury in consequence of defendant's negligence or as to the contributory negligence of the party injured. (Qaven v. City of Troy, 15 App. Div. 163 [1897].) When facts reviewed without exception to a decision, if case contains all the evidence.] Where the decision has been made, containing findings of fact and conclusions of law, separately stated, the defeated party is at lib- erty upon appeal to review the facts without having filed any exceptions to the decision, provided it appears that the case contains all the evidence. (Matchett v. Lindberg, 2 App. Div. 340 [1896]..) Motion to set aside verdict — review of — what the case should con- tain.] Where a motion is made to set aside a verdict as against the weight of evidence and is entertained and denied, the decision cannot be reviewed at General Term, imless the case states that it contains all the evidence bearing upon the question. (Cheney v. N. Y. C. & H. R. R. R. Co., 16 Hun, 415 [1879].) Where there is no certificate, a verdict for six cents damages will not be set aside as inadequate, although from what does appear in the ease such verdict was inadequate. (Revelski v. Droesch, 6 App. Div. 190 [1896].) The case must contain all the evidence.] Where, on the ground that a verdict is not sustained by the evidence, a motion for a new trial is made and denied, or where defendant moves for a nonsuit on the ground of lack of evidence and his motion is denied upon appeal, the case presented to the court should contain all the evidence given upon the trial. (Sloane v. Lock- wood Chemical Co., 45 St. Rep. 265 [Brooklyn City Court, 1892].) The record on an appeal from an order confirming the report of a ref- eree, to assess damages, should contain all the evidence. (Williams v. Lind- blom, 90 Hun, 370 [1895].) No review of the direction of a verdict if there be no certificate.] Where there is no certificate in a case on appeal that it contains all the evi- dence, there can be no review of a ruling refviaing to direct a verdict or of exceptions based upon alleged deficiencies in evidence. (Rosenstein v. Fox, 9 Misc. Rep. 449 [N. Y. Com. PI. 1894].) Judgment of affirmance by General Term of the City Court is conclu- sive upon the Court of Common Pleas, in absence of certificate, as to the weight of evidence and the propriety of its submission to the jury, and as Rule 32] General Rules of Pkactioe. 215 to whether there was any evidence to support the recovery. (Soule v. Veyrac, 13 Misc. Kep. 167 [K Y. Com. PI. 1895].) A certificate is not requisite to present an exception to the direction of a verdict where a question for the jury appears. (Brown v. James, 2 App. Div. 105 [1896].) Case — without evidence.] Where the case contains only the report of the referee without any of the evidence, the appellate court will not set it aside unless the report contains facts which render its conclusions erroneous. The report must show that facts exist which are inconsistent with its con- clusions of law. (Tomlinson v. The Mayor, 44 N. Y. 601 [1871].) No appeal on the evidence without it.] The appellate court will not consider an appeal on the evidence where the case fails to show all the evidence adduced on the trial. (Miller v. Wright, 39 St. Rep. 44 [Sup. Ct. 1891].) When the case should be ordered to be annexed to the judgment-roU.] When the case is settled and filed, after entry of judgment, the judge, ref- eree or coiu-t should make an order directing that the case be annexed to the judgment-roU. (Cornish v. Graff, 36 Hun, 160 [1885].) Objection that a case does not contain a proper certificate.] An objeo- t>on that the case does not contain the certificates required by law must be taken by motion to dismiss the appeal. (Woolsey v. Lasher, 35 App. Div 108 [1898].) As to certificate on appeal from order of Surrogate's Court.] (See Matter of Gowdey, 101 App. Div. 275.) PRESUMPTION — Where the case does not allege that it contains all the evidence.] On the review of a trial before a judge or referee, unless the case shows that it contains all the evidence bearing on a disputed finding of fact, the court will assume that there was no evidence sufficient to sustain the finding. (Porter v. Smith, 35 Hun, 118 [1885].) Respondent presumed to have had inserted all the testimony necessary to sustain the rulings.] Upon an appeal from a judgment dismissing a com- plaint the Appellate Division, in the absence of a certificate that the case contains all the evidence, will assume that the respondent has procured to be inserted therein all the testimony deemed essential to sustain the ruling. (Hewett V. Town of Thurman, 41 App. Div. 6 [1899].) Presumption that facts were proved to sustain the findings.] Wliere a case upon appeal in an action tried by a referee contains only the judgment- roll and none of the evidence, the Court of Appeals will assume that the facts proved on the trial were sufficient to sustain the findings of fact made by the referee, and his conclusions of law are alone the subject for review. (Burrows v. Dickinson, 115 N. Y. 672 [1889].) When absence of certificate fails to compel presumption that evidence sustained verdict.] The court is not bound to assume that there must have been evidence to sustain the verdict simply because of the absence of the certificate that all of the evidence is contained in the case. Where a case contains a fact admitted by both parties, or where the evi- dence is all one way on a certain question of fact, the covirt is bound to 216 CouETs OF Eecoed. [Kule 32 regard it, and is not at liberty to assume that there was evidence to the con- trary. (Lydecker v. Village of Nyack, 6 App. Div. 90 [1896].) Presumption that sufficient evidence was given to support the judg- ment.] In the absence of tlie statement that the case contains all the evi- dence, the court will presume that sufiicient evidence was given to support the judgment. (Kissam v. Kissam, 21 App. Div. 142 [1897].) Presumption — Indulged by appellate court.] The Appellate Division will assume that a referee has stated all tlie facts found by him aflirmatively and that he negatives those facts litigated on the trial upon which his report is silent. (Manly v. Insurance Co., 1 Lans. 20 [Gen. T. 1869]. See contra. Hays V. Miller, 70 N. Y. 112 [1877].) Presumption by Court of Appeals, where, after three trials, no objec- tion has been taken, and there was no certificate.] Wliere the plaintiff's title in ejectment has been upon the fact of the death of her mother prior to the action, and at the trial no point was raised that the mother was not dead, and after three trials of the case and as many appeals no specific objection was taken by defendant to raise that question or to suggest that such a defect existed in the proof, and there was no certificate attached to the case that it contained all the evidence, held, that tlie Court of Appeals would presume that the fact of the mother's death was expressly or tacitly admitted at the trial or that it was in some way established. (Clason v. Baldwin, 152 N. Y. 204 [1897].) The General Term will not raise presumptions in order to sustain a judgment for the recovery of a statutory penalty. (Conly v. Clay, 90 Hun, 20 [1895].) The decision in Chubbuck v. Vernam (42 N. Y. 432 [1870]), that in such case the cause cannot be questioned in the Court of Appeals, reversed. (Stoddard v. Whiting, 46 N. Y. 627 [1871].) Uncontradicted evidence.] When uncontradicted evidence establishes the existence of a fact essential to the plaintiff's right to recover, it will be presumed in svipport of a judgment in his favor that such fact was found by the referee, thovigh not so stated in his report. (Bancker v. Mayor, 8 Hun, 410 [1896].) Presumption of consent where evidence is received without objection.] Where evidence is received without objection, although no basis for it appears in the complaint, and no motion is made to strike it out, the parties are presumed to have consented that the court shall consider it, and it is the duty of the court to consider it the same as any other evidence in the case. (Otten V. Manhattan R. Co., 150 N. Y. 395 [1896].) Case without findings of fact — presumption.] When a case comes up for review without any findings of fact, the decision will be presumed to be correct. (Viele v. Troy & Boston E. R. Co., 20 N. Y. 184 [IS59].) Case without certificate — presumption that General Term passed on exceptions.] The opinion of the General Term, to the effect that that court could not consider the questions of fact on account of the absence of a cer- tificate that the case contained all the evidence, where nothing to that effect appears in the order or the judgment appealed from, cannot be considered by Kule 32] General "Rules of Pkaotice. 217 the Court of Appeals, and it will be presumed that the General Term passed upon all the exceptions appearing in the case. (Rosenstein v. Fox, 150 N. Y. 354 [1896].) — —Where there is no evidence in the record, there is no presumption that facts were shown other than those stated in the referee's report. (Corner V. Mackey, 147 N. Y. 574 [1895]; Bartlett v. Goodrich, 153 id. 421 [1897].) Presumption where decision of the court is general, and states no findings.] Where the decision of the court below is a general one, rendered without expressing the facts found, it is regarded as a general verdict ren- dered by a jui-y, and the same presumption arises in its support. (Beardsley V. N. y.. Lake Erie, etc., R. R. Co., 15 App. Div. 251 [1897].) When statement of facts in complaint assumed to be true.] On appeal from the judgment dismissing the complaint, all the statement of facts will be assumed to be true. (Reynolds v. Westchester Fire Ins. Co., 8 App. Dir. 193 [1896].) Presumption in favor of referee's report.] Every presumption is in its favor. It is assumed to be right and to be founded upon proof of every necessary fact. (Tomlinson v. The Mayor, 44 N. Y. 601 [1871]; Westoott v. Fargo, 6 Lans. 325 [Gen. T. 18721.) To what facts the presumption is confined.] The presumption indulged by an appellate court in support of a judgment in an action tried by the court or referee that material facts which appear in the case but are not embraced in the express findings were found and considered, applies only to such facts as being found would sustain the special finding:. (Armstrong v. Du Bois, 90 N. Y. 95 [1882].) NEW TRIAL. See notes under Rule 31, ante. TIME — Time of making.] The ten days for making a case begin to run from the entry of judgment and notice and service of a copy thereof. (Schwarz v. Weber, 103 N. Y. 658 [1886]; French v. Powers, 80 id. 146 [1880].) Where the trial is before a jury, the time runs from the time of the trial or the motion for a new trial. (Kenney v. Sumner, 12 Misc. Rep. 86 [1895]; French v. Powers, 80 N. Y. 146 [1880].) — — Statutory Construction Law — computation of time thereunder. (Aultman & Taylor Co. v. Syme, 91 Hun, 632 [1895].) Computation of time. (People v. Burgess, 153 N. Y. 561 [1897].) Extension of time to serve exceptions does not extend the time to appeal, or vice versa.] The extension of the time to file and serve exceptions, or a case with exceptions, does not also extend the time to serve a notice of appeal, nor does the extension of the time to appear per se extend the time to file and serve exceptions or to serve a case with exceptions. (Sails v. But- ler, 27 How. Prac. 133 [Gen. T. 1863].) Application for an extension of time to serve papers on appeal must be made in the court below. (Matter of Stafford, 21 App. Div. 476 [1897].) Application for relief from default in serving a case should be made to the court from the judgment of which the appeal is taken. (Odell v. Mc- Grath, 16 App. Div. 103 [1897].) 218 , CouETs OF Eecoed. [Rule 32 Default in filing a case — what must be shown to open default.] Where a party makes default in filing his case on appeal without applying for an extension of time, not only good grounds for the delay must be shown, but also for not having procm'ed the extension of time, in the absence of which proof the appeal will be dismissed. (Gamble v. Lennon, 9 App. Div. 407 [1896].) Omission to make a case.] See notes under Rule 33. Notice of entry of judgment — what notice is insufficient.] A written notice that " the foregoing is a copy of a judgment entered in the clerk's ofBce of the county of St. Lawrence at Canton, N. Y., on the 29th day of .June, 1897, at twelve o'clock noon," such copy being neither signed by the clerk nor having inserted therein any amount of costs, is not a sufficient notice of the entry of judgment — section 1236 of the Code of Civil Proced- ure prescribing that a judgment " shall be signed by the clerk and filed in his office, and such signing and filing shall constitute the entry of the judg- ment." (Mason v. Corbin, 29 App. Div. 602 [1898].) As to form of notice of entry of judgment.] ( See Kelly v. Sheehan, 76 N. Y. 325 [1879].) Abandonment of case — stay until costs of prior action are paid.] A plaintiflf having been nonsuited, with leave to move for a new trial on a case and exceptions, served a notice on the defendant that she abandoned her case and exceptions, and that an order to that eflfect might be entered without notice, and thereupon commenced another action for the same cause of action; the defendajit moved at Special Term that all proceedings on the part of the plaintiflf in the second action be stayed until the costs in the first action should be paid; this motion was denied on the theory that the plaintiflf's right to review or move for a new trial could not be terminated by notice, and that the case was still pending. The General Term reversed this ruling, and held that the plaintiff's right to move for a new trial was abandoned by the notice, and that the defendant could enter final judgment upon the nonsuit ; the costs were then taxed, and the defendant entered final judgment in the first action, and then renewed the motion for a stay in the second action at Special Term, setting forth the proceedings since the first motion, and the motion was granted. (Noonan v. New York, L. E. & W. R. Co., 68 Hun, 388 [1893].) Default in having case signed and filed within ten days works an abandonment — relief thereafter.] Default in having a case on appeal signed and filed within ten days after it has 'been settled works an abandonment of tlie appeal, and relief can only be had by motion in the court or branch of the court from which the appeal was taken. (Rothschild v. Rio Grande West- ern R. Co., 9 App. Div. 406 [1896].) SURROGATE'S COURT — Appeal from a decision admitting a will to pro- bate, disapproved.] An appeal from a surrogate's decree admitting a will to probate is useless, as the same result can be obtained by an action under section 2653a of the Code, and the practice of taking such appeals should be discouraged. (Matter of Austin, 3o App. Div. 278 [189S].) Surrogate's decision — how reviewed.] The provisions of the Code of Civil Procedure regulating the method by which a review of errors on a trial Kule 32] General Etjles of Practice. 219 before a surrogate may be secured, and providing for a loss of a right of review unless such methods are regularly pursued, furnish and limit the only remedy against such errors. (In re Hawley, 100 N. Y. 206 [1885].) Clerical error.] A surrogate has power, on motion, to correct a clerical error in a decree, where the motion does not involve a review of the decree upon the merits. (Matter of Henderson, 157 N. Y. 423 [1898].) Questions of law reviewed only upon ezceptions taken under Code CiTil Procedure, section 2545.] Where a notice of appeal states that an appeal is taken from every part of the surrogate's decree, though no excep- tion to the decision has been filed, the court may, in a proper case, reverse upon the facts. No question of law can be reviewed upon such an appeal, unless exceptions have been taken as provided by C!ode of Civil Procedure, section 2545. (Matter of Spratt, 4 App. Div. 1 [1896].) Findings by Surrogate's Courts — authority to make.] Section 1023* of the Code of Civil Procedure has no application to a Surrogate's Court, which cannot, therefore, ibe required to determine particular questions before Tendering the decision, but its authority to pass upon proposed findings after euch rendition is expressly recognized by section 2545 of said Code. (Tilby v. Tilby, 3 Demarest, 258 [N. Y. Sur. Ct. 1885].) Case on appeal from — how made.] The practice upon a trial before a Surrogate's Court of a question of fact and the preparation of papers on which an appeal shall be heard are assimilated to the proceedings on and after the trial of an action by the court, and for this purpose the surrogate's decree is regarded as a judgment in an action. (Hewlett v. Elmer, 103 N. Y. 156 [1886]; Waldo v. Waldo, 32 Hun, 251 [1884].) General Term and Court of Appeals.] The provisions of the Code on this subject, including those defining antt limiting the questions which may be brought up for review, are a/pplicable to an appeal from the determination of the General Term aflfirming a surrogate's decree. (Hewlett v. Elmer, 103 N. Y. 156 [1886]; Waldo v. Waldo, 32 Hun, 251 [1884].) Case upon an appeal from surrogate's decree must be settled.] To entitle an appellant, on an appeal from a surrogate's decree, to a review of the facts found by the surrogate, a case containing the evidence must be made and settled by the surrogate, as prescribed by section 2576 of the Code of Civil Procedure. (Matter of Walrath, 69 Hun, 403 [1893].) 'Making of a case on appeal from an informal decision of the surrogate, does not preclude raising the question of jurisdiction. (Matter of Campbell, 88 Hun, 374 [18«5].) Review of surrogate's decision' — without any case.] When the er- roneous decision of a surrogate may be reviewed upon an appeal from his decree without any case being prepared and settled. (Matter of Jackson, 32 Hun, 200 [1884].) Right of a surrogate to extend the time for making a case.] Sections 2572 and 2577 of the Code of Civil Procedure and Rules 32 and 33 of the Gen- eral Rules of Practice are entirely independent of each other ; the surrogate may after the entry of the decree or order sought to be reviewed extend the » Repealed by chapter 688 of 1894. 220 CouETs OF Eecokd. [Rule 32 time for making and serving a case, although the appeal has not been {)er- fected, provided that the time for perfecting it is as yet unexpired. (In re Estate of James Tilby, 1 How. Prac. [N. S.] 452 [N. Y. Sur. Ct. 1885].) Findings of a surrogate on an accounting — how far subject to review in Court of Appeals.] If an essential finding be made by a surrogate upon the accounting of an executor or an administrator, without the support of any evidence, it is an error of law, which it is the duty of the Court of Appeals to correct. (Matter of Rogers, 153 N. Y. 316 [1897].) Exceptions and a decision essential to the review of a surrogate's de- cree.] An appeal from a decree of the Surrogate's Court upon an account- ing cannot be heard where no findings were requested of the court, and there were no exceptions filed to the rulings of the court, and no decision in writing was filed, stating separately the facts found and the conclusions of law; and the mere fact that there was injected into the accounting a. motion to set aside previous decrees in no way changes the nature of the proceeding nor obviates the necessity of the findings, exceptions and decisions. (Matter of Account of Perkins, 75 Hun, 129 [1894].) Exceptions essential to a review of its decree.] An appeal from a Surrogate's Court brings up for review only questions which were raised by the takiiig of proper exceptions — a general exception to .tho surrogate's decree and to each and every part of it is insuflficient. (Angevine v. Jackson, 103 N. Y. 470 [1886].) Exceptions to findings of a referee confirmed by the surrogate, raises what question.] A surrogate having confirmed the findings of a referee, an exception to the findings raises the question whether there was any evidence to sustain the findings. (Matter of Humfreville, 6 Ap.p. Div. 535 [1896].) Right of a respondent on an appeal from a Surrogate's Court to set up defects in portions of the decree not appealed from.] In a proceeding pending in the Surrogate's Court, the surrogate disallowed the claim of the mother of the testatrix to a one-sixth interest in the estate, and directed the whole residuary estate to be invested and retained by the executor until an infant child should die or become of age. The mother did not appeal; the executor appealed in 1880 from other parts of the decree; in her answer to the appeal the mother alleged that said portion of the decree disallowing her claim was erroneous. Held, that the General Term had jurisdiction to review and re- verse the decision. Rule 42 of Supreme Court of 1878; Code of Civil Pro- cedure, section 2587. (Freeman v. Coit, 96 N. Y. 63 [1884].) What questions are presented on appeal from surrogate's decree.] An appeal by administrators from a decree of the Surrogate's Court allowing their accounts as presented, does not bring before the appellate tribunal the question of the right of one of them, as an individual, to recover a claim made by him against the estate. (Matter of Mayer, 84 Hun, 539 [1895].) On appeal from surrogate's decree, what the court will not assume.] On appeal from a decree of a surrogate, where the will is not contained in the appeal book, the General Term will not assume that the duties of the de- fendant-respondent, as executor and trustee, were so blended as to render a single account proper. (Matter of Hammond, 92 Hun, 478 [1895].) Rule 32] Geneeal Eules of Peactice. 221 Error must be shown to cause prejudice.] An appellate court should not reverse a decree of a surrogate for an error in admitting or rejecting evi- dence, unless it appears that the expectant was necessarily prejudiced thereby, and it is at liberty to disregard such an error if it could have had no influence upon the determination of the case. (Matter of Miner, 146 N. Y. 121 [1895J. See, also. Matter of Seagrist, 1 App. Div. 615 [1896].) Vacating decree for fraud, when justified.] A decree of the Surrogate's Court should not be vacated for fraud, unless the facts would justify setting aside a, judgment of the Supreme Cou-rt, in which case the fraud must be clearly established. (Matter of Richardson, 81 Hun, 425 [1894].) Appeal from a surrogate's decree confirming a referee's report — on what heard.] An appeal from a surrogate's decree confirming the report of a referee must be heard on the testimony on which the surrogate acted, and the case cannot be amended by the Appellate Division so as to change the tran- script of testimony which was filed; the remedy of a party dissatisfied with such transcript is by objection in the Surrogate's Court before the motion to confirm is made. (Matter of Dietzel, 36 App. Div. 30O [1899].) It is the duty of one appealing from a decree of a surrogate to insert the testimony in the case and also to furnish the pleadings and! the citations. (Simpson v. Maney, IOC N. Y. Supp. 620. See, also, Matter of Goldsticker, 54 Misc. Eep. 175.) Appeal from surrogate's order fixing appraisers' fees.] An order of a Surrogate's Court fixing the fees of appraisers of the estate of a deceased tes- tator is a final order affecting a substantial right and so is appealable to the General Term of the Supreme Court. (Matter of Harriot, 145 N. Y. 540 [1895].) CRIMINAL CASE — Expense of preparing the case.] When the expense of preparing the case in a criminal cause will be charged upon the count}-. (People V. Jones, 34 Hun, 626 [1885]. See § 485 of the Code of Civil Pro- cedure. ) ARBITRATORS — Appeal from the decision of arbitrators — upon what papers heard.] Appeal from an order confirming the report of arbitrators, or from the judgment entered thereon; upon what .papers it must be heard; no case can be proposed or served. (Matter of Poole v. Johnston, 32 Hun, 215 [1884].) SETTLEMENT — Before what judge — presumption that it was correct.] While a bill of exceptions in a criminal action ought regularly to be settled by the judge before whom the indictment was tried, the parties may consent that the settlement be had at a subsequent term before the judges then com- posing the eourt, although not the ones who sat upon the trial. A bill of ex- ceptions so settled was returned upon the writ of error. It did not appear that there was any objection to the settlement at the time it was made, or that any application was made to correct the record upon the ground that the bill of exceptions was improperly inserted. Held, that the presumption was that the settlement as made was consented to, and an objection to the regu- larity thereof upon the argument of the case in the Court of Appeals would not be entertained. (Wood v. People, 59 N. Y. 117 [1974].) 222 Courts of Eecoed. [Eule ?A Stenographer's minutes to be produced.] Where the proposed amend- meats seek to strike out a large quantity of testimony actually taken, the court should refuse to settle the case unless the" minutes of the official stenog- rapher are submitted to him. (Kamermann v. Eisner & Mendelaon Co., 25 Misc. Eep. 405 [1898].) Power of the trial judge to strike out evidence.] Upon the settlement of a case on appeal the trial judge has no power to strike out evidence which the appellant regards as material where facts are not or cannot be disputed, but the certificate of a trial judge is conclusive as to the occurrences at the trial when the facts are disputed. (Healey v. Terry, 26 N. Y. St. Eep. 929 [N. Y. City Ct. 1889].) Power of a justice to strike out exceptions from a case as filed.] A justice out of court has no power to make an order striking out exceptions to the findings, and refusals to fin [1874].) As to the sufficiency of exceptions to raise questions on appeal. (Hayes v. B. & D. M. Co., 102 N. Y. 648 [1886]; Bigelow v. Legg, Id. 652 [1886].) Failure to show that exceptions were filed.] The fact that appel- lant's papers do not show that his exceptions were duly filed is not sufficient to allow respondent to strike them from the case on appeal ; he must prove appellant's failure to file them. (Young v. Young, 133 N. Y. 626 [1892].) 246 Courts of Eecokd. [Rule 32 Not waived by offering evidence in rebuttal.] A party does not waive his objection to the admission of evidence by offering evidence in rebuttal thereof. (Woods v. Buffalo R. Co., 35 App. Div. 203 [1898].) Motion to amend by inserting — where made.] Motion to amend the case by inserting exceptions must be made before the judge who tried the cause, and not at General Term. (Ropes v. Arnold, 85 Hun, 619 [1895].) Objection not raised below.] An objection that a contract is void as violating the provisions of the act of Congress known as the Anti-Trust Act, cannot be considered by the Court of Appeals, where it was not raised ■below. (N. Y. Bank Note Co. v. Hamilton B. N., etc., Co., 180 N. Y. 280.) SUFFICIENCY OF — What reviewable under.] An exception to a finding in the report of a referee will not be sufficient to bring up the question of admissibility under the pleadings of the evidence upon which such finding was based. (Gibson v. Stctzer, 3 Hun, 539 [1875].) Where none are taken to the dismissal of the complaint or the ref- eree's conclusions of law — but only to the admission of evidence on the trial.] Where the case contains no exception to the dismissal of the com- plaint in the action, or to the referee's conclusion of law, the court, neverthe- less, has power to review the rulings of the referee upon the question? of evi- dence which arose upon the trial, and are presented by tlie exceptions- taken at the time, and to reverse the judgment and grant a new trial if it is foimd that the referee has erred in any of tliese particulars to the prejudice of the plaintiff. (Dainese v. Allen, 45 How. Prac. 430 [Gen. T. 1873].) Where a case contains none of the evidence.] Exceptions to con- clusions of law may be reviewable although the printed case does not contain any of the evidence. On such an appeal the question is, has the judge or referee drawn a correct conclusion from established facts? (Frost v. Smith, 7 Bosw. 108 [I860]; Ferguson v. Hamilton, 35 Barb. 427 [1862].) To a sum allowed, raises question whether the entire sum is proper.] Where a referee finds, as a legal conclusion, that one party is' entitled to recover of the other a specified sum, an exception thereto raises the question whether the successful party is entitled to recover the entire sum. ( Briggs v. Boyd, 56 N, Y. 289 [1874].) Single exception — when sufScient.] In a case where no questions of fact arise upon the evidence, and' no interlocutory questions of law are raised on the trial, the decision of the referee will disclose all the facts, and a single exception to this decision is proper, and will present the whole question. (Brewer v. Irish, 12 How. Prac. 481 [Gen. T. 1856].) Stated together.] In a bill of exceptions it is no objection that the statement of the exceptions is all contained in one sentence, so long as it shows distinctly that each offer or request was separately made and niled upon, and each ruling excepted to. (Dunckel v. Wiles, 11 N. Y. 420, 428 [1864].) Report of interlocutory referee — review of.] Where the com-t makes an order upon exceptions to the report of an interlocutory referee and renders judgment in accordance with the order, upon appeal from the judgment the court will not review such order, unless the exceptions to the final con- Kule 32] General Eules of Pbactice. 247 elusions of law bring up for review some question affected by it. (Russell V. Duflon, 4 Lans. 399 [Gfen. T. 1871].) Exceptions proper to a report on a receiver's account.] Exceptions are properly filed to a report of a referee on the accounts of a receiver. (Matter of Guardian Savings Inst., 9' Hun, 267 [1876]. See Darling v. Brewster, 55 N. Y. 667 [1874].) STIPULATION — That exceptions were taken — not equivalent to excep- tions.] A stipulation to the effect that the finding and decision of the judge, in a cause tried without a jury, " shall be considered as having been duly excepted to," will not be regarded as equivalent to an exception. (Stephens V. Reynolds, 6 N. Y. 454 [1852]; People v. Buddensieck, 103 id. 487 [1886].) WHEN NO EXCEPTIONS LIE — To review errors on trial, exceptions need not be taken to report.] When a paity relies exclusively upon errone- ous decisions made during the trial, it is not necessary to make and serve formal exceptions to the conclusions of law or to the final decision. (Cowen v. The Village of West Troy, 43 Barb. 48 ; The Mayor v. Erben, 24 How. Prac. 358; Dainese v. Allen, 45 id. 434 [Gen. T. 1873].) To refusal to find the particular facts making up the general finding.] No exception lies to the refusal of a referee to find the particulars which go to make up his general conclusions of fact. (Avery v. Foley, 4 Hun, 415 [1875].) To referee's findings of fact.] Findings of fact need no exception. (Hatch V. Fogarty, 7 Robt. 488; Lefler v. Field, 50 Barb. 407; Mayor, etc., v. Erben, 24 How. Prac. 358 ; Magie v. Baker, 14 N. Y. 435 ; Garfield v. Kirk, 65 Barb. 464.) Who cannot except to referee's report.] The party in whose favor all the issues of law are decided by the referee, cannot except to the report of the referee. (Greene v. Smith, 13 App. Div. 45« [1897].) ERROR, CURED — By instruction to disregard evidence ] An error In the reception of evidence will be cured by an instruction to the jury to disregard it entirely. (Geneva, Ithaca, etc., Railroad Co. v. Sage, 35 Hun, 95 [1885].) Improper statement of counsel.] An improper statement of counsel to the jury as to the result of a former trial of the action is eliminated and cured by a charge directing the jury to disregard it and explaining fully why it should not be considered. (Cole v. Fall Brook Coal Co., 159 N. Y. 59, affg. 87 Hun, 584 [1899].) Remark of the judge — the jury directed to disregard it.] Error of the court in remarking while excluding evidence, that " You have evidence of the injury sufficient for a big verdict, if the jury believe it," is cured where the court instructs the jury to disregard it and charges that they were the sole judges of the facts. (Reilly v. Eastman's Co., 27 Misc. Rep. 32 [1899].) Error in admitting incompetent evidence is cured by subsequently making it competent. (Kraus v. J. H. Mohlman Co., 18 Misc. Rep. 430 [Sup. Ct. App. T. 1896].) EXCEPTIONS TO THE CHARGE — To the jury.] A general exception to a charge is not necessarily an exception to every word in it, and, there- fore, bad if there be one word of truth in the whole charge (Schenck v. Andrews, 57 N. Y. 149 [1874].) 248 Courts of Record. [Rule 32 To enable the Appellate Term to pass upon a charge or request to charge, or upon the admission of evidence, an exception must be taken. (Frischmann v. Zimmermann, 19 Misc. Rep. 53 [Sup. Ct. App. T. 1896].) Error cannot be predicated to the judge's charge, without an exception. (Schaflf V. Miles, 10 Misc. Rep. 395 [N. Y. Com. PI. 1894] ; Ryan v. Conroy, 85 Hun, 544 [189'5].) In a case where a request to charge embodies a false proposition, it is not the duty of the court to separate the good and charge that by itself. (Lee v. Sterling Silk Mfg. Co., 134 App. Div. 133.) Wliere a request to charge involves a repetition of what the coui-t has already charged, and the court refuses to so charge, an exception is unavailing. (Meltzer v. Straus, 61 Misc. Eep. 250; Lilley v. Uvalde Asphalt Co., 127 App. Div. 310. See, also, Murray v. Narwood, 192 N. Y. 172; Woolsey v. Brooklyn Heights R. R. Co., 123 App. Div. 631; Jacobson v. Fraade, 56 Misc. Rep. 631-; Clark V. N. Y. Cent. R. R. Co., 191 N. Y. 416; Colwell v. Allen Foundry Co., 123 App. Div. 601; Hanley v. Brooklyn Heights R. R. Co., 127 id. 355; People V. Hummel, 119 id. 153; Amballan v. Barcalo ilfg. Co., 118 id. 547; Bambaee v. Interurban St. Ry. Co., 188 N. Y. 288; Fulton v. Sewell, 116 App. Div. 744; People v. Waters, 114 id. 669; Regling v. Lehmaier, 50 ^ilisc. Eep. 331; Twaddell v. Weidler, 109 App. Div. 444; Gurski v. Doscher, 112 id. 345.) Error in charge — judgment reversed where no exception is taken.] Where the jury was evidently guided in rendering the verdict by an error in the charge, judgment will be reversed, though no exception thereto was taken. (Levy V. Klepner, 15 Misc. Rep. 643 [X. Y. City Ct. 1896]. See, also, Griebel V. Rochester Printing Co., 8 App. Div. 450 [1896].) An error in the charge, not explicitly excepted to, which might have been obviated by correction, is not a sufficient ground for reversal. (Hess & Co. V. Baar, 14 Misc. Rep. 286 [X. y. Com. PI. 1805].) Tlie court may reverse a judgment for a misdirection to the jury, even though no exception was taken at the trial. (Gruhn v. Gudebrod Bros. Co., 21 Misc. Rep. 528 [N. Y. City Ct. 1897].) Case submitted to jury on erroneous theory — new trial granted with- out exceptions.] If the case has been submitted to the jury, and decided upon a wholly erroneous theory, the Appellate Division may grant a new trial, though there is no exception to such submission. (Leach v. WiUiams, 12 App. Div. 173 [1896]; Vorce v. Oppenheim, 37 id. 66 [1899].) Power of General Term to reverse without exceptions.] The power of the General Term to reverse a judgment, although an exception be not taken to an error committed by the trial court, is never exercised in a civil action when the error complained of is one that could have been cured on the trial if the attention of the court and opposing counsel had been brought to it. (Currier v. Henderson, 85 Hun, 300 [1895].) 3 Adoption of improper rule of damages is not sufficient ground for re- versal, where no exception was taken and no injustice resulted. (Smith v. Foote, 81 Hun, 128 [1804].) Right to require a charge upon propositions of law.] Counsel have the right to submit propositions of law to the court, and it is the dutj' of the Eule S'2] Geneeal Rules of Peactice. 249 court to instruct th« jury upon each proposition.. (Chapman v. McCormick, 86 N. Y. 479 [1881]; O'Neil v. Dry Dock, etc., R. B. Co., 129 id. 125 [1891].) Right of counsel to call the attention of the court to particular re- quests to find.] At the close of the testimony the counsel for the defendant submitted to the court an unnecessary and imreasonable number of requests to charge, and upon the failure of the court to embody all these requests in its charge, said : " I desire to call your Honor's attention to certain propositions embodied in the written requests to charge which I have submitted." The court here said : " I decline to olmrge further than I have already," to which the defendant excepted. Held, that the exception was well taken; that the counsel was entitled to distinguish and point out the specific propositions he desired to have charged. (Debost v. Albert Palmer Co., 35 Him, .386 [1885].) General exceptions to a number of refusals to charge, untenable.] A general exception to a number of refusals to charge is not tenable, unless all the requests should have been granted. (Barker v. Cunard Steamship Co., 91 Hun, 495 [1895].) Attention of the court to be called to the precise point.] The atten- tion of the court must be called to the precise point upon which a charge is asked or an exception will not lie. (Schile v. Brokhahus, 80 N. Y. 614 [1880].) SufScieut exception.] A statement by the court, " I understand coun- sel to except to my failure to charge all tlie requests not charged," does not raise any question for the appellate court. To make an available exception the party must point out the objectionable language, and interpose thereto an exception. The language of the court giving a party an exception must be clear. (Henderson v. B,artlett, 32 App. Div. 435 [1898].) When a portion of a charge is correct.] ^Vhen a portion of a charge excepted to is admitted to be correct, such exception will not be sustained. (Doyle v. N. Y. Eye & Ear Infirmary, 10 N. Y'. Wkly. Dig. 3 [Ct. of Appeals, 1880].) When only a portion of the request to charge is correct.] The court is not bound to separate the good portion of the request from the bad, and charge the former. (Hamilton v. Eno, 81 N. Y^ 116 [1880]; Davis v. Leopold, 87 Id. 620 [1881]; Koehler v. Hughes, 148 id. 507 [1896].) To the whole charge — when too broad.] Where a portion of a charge excepted to is proper, an exception to the whole charge is ineffective, and does not raise the question whether the charge was correct. (Groat v. Gile, 51 N. Y. 431 [1873]; O'Leary v. Walter, 50 id. 683 [1872].) Objection to certain phrases of a charge must be taken specifically.] Where counsel believes that the charge is misleading, through certain phras.'s inserted in tlie proposition, which is otherwise correct, it is necessary for him to take specific exception to the proposition o'bjected to, in unmistakable language. A single objection to the several propositions of the charge, if one of them is correct, wiU not avail. (Ensign v. Hooker 6 App. Div. 425 [1896].) Exception to charge — need not repeat the portion objected to.] It is not essential to an exception to a portion of a charge to repeat the Ian- 250 CouETs OF Recoed. [Eule 32 guage excepted to, although this is strictly the more accurate practice; it is sufficient if the portion objected to is pointed out with such accuracy that there can be no misapprehension as to the application of the exception. (People ex rel. Daily v. Livingston, 79 N. Y. 279 [1879]. See, also, Schmalz V. Hauseman, 7 Civ. Proc. R. 414 [New York City Ct. 1885] ; McGinley v. U. S. Lite Ins. Co., 77 N. Y. 495 [1879].) It is not necessary to suggest an amendment or chaiige. (Freund v. Paten, 10 Abb. N. C. 31 [N. Y. Com. PI. Gen. T. 1882].) Request to charge, which simply repeats or separates the charge al- ready given.] Where the requests to charge merely repeat in diflFerent language what has already been charged, or separate propositions already charged, the refusal to charge as requested is not error. (Raymond v. Rich- mond, 88 N. Y. 671 [1882].) Grounds thereof need not be stated.] In an exception to a judge's charge, counsel is not bound to state the grounds of his exception. (Gold- man V. Abrahams, 10 N. Y. Wkly. Dig. 108 [Gen. T. April, 1880]. See Jordan V. Bowen, 11 N. Y. Wkly. Dig. 72 [Gen. T. 1880].) Where the error in the charge is harmless.] Where the court charges that the jury may infer a certain thing and errs in so doing, but the error is harmless, the fact being immaterial, the judgment will be affirmed notwith- standing an exception to such charge. (Ginna v. Second Ave. R. R. Co., 67 N. Y. 596 [1876]; Vorce v. Oppenheim, 37 App. Div. 69 [1899].) A statement by the judge of his recollection of the testimony.] The trial judge has no right to state his recollection of what a witness had sworn to on a former trial, as it is not legal evidence of the fact. (People v. Corey, 157 N. Y. 332 [1898].) Statement by the judge of his intention to throw the case out of court.] A statement made by the court to counsel in ruling on the admission of evidence, that he meant to throw the action out of court at the first oppor- tunity, constitutes reversible error, although the jury are instructed not to pay any attention to it. (Swan v. Keough, 35 App. Div. 80 [1898].) Comment by the court upon the testimony.] The fact that the trial court, in the charge of the jury, comments upon the testimony is not a groimd of objection, provided the jury are instructed that they are the sole judges of the facts. (Sindram v. People, 88 N. Y. 196 [1882].) An expression of its opinion by the court.] An expression of an opinion by the court as to a question of fact, if no direction be given to the jury to follow it, is not the ground of an exception. (Massoth v. Del. & H. Canal Co., 04 N. Y. 524 [1876].) Expression of an opinion in a charge — when ground for a new triaLJ When a new trial should be granted, because of the expression of an opinion by the judge which is calculated to influence the jury. (Richardson v. Van Nostrand, 43 Hun, 299 [1887].) Exception to specific proposition or remark of the trial judge must be clear. (Lindheim v. Duis, 11 Misc. Rep. 16 [N. Y. Supr. Ct. 1895].) Ambiguous charge — exception to.] When a charge is made in am- biguous language to a jury, and the counsel except, stating their understanding Kiile 32] Gejstebal Rules of Peactice. 251 of the charge, if the judge does not intend to lay down the rule as suggested by the counsel, he must disclaim the interpretation of the counsel and state the rule accurately; and if he does not do so he will be assumed to have adopted the interpretation suggested by the counsel. (Price v. Connor, 15 Alb. Law J. 256 [Court of Appeals, 1877].) , Exception to the direction of a verdict sufScient — not necessary to demand submission of facts to the jury.] An exception to a direction of a verdict for plaintiff is sufficient to present the point on appeal that there were questions of fact for the jury; it is not necessary to request the submission of any sxich facts. (First Nat. Bk. v. Dana, 79 N. Y. 108 [December, 1879] ; Trustees of East Hampton v. Kirk, 13 Alb. L. J. 233 [Court of Appeals, 1877].) General exception to the direction of a verdict — when insufficient.] To justify a reversal, the exceptions must present the specific point for review, and a general exception to the direction of a verdict is not sufficient to raise the objection that the proper judgment, if against appellant, was nonsuit. Law V. Pemberton, 10 Misc. Pep. 362 [N. Y. Com. PI. 1894].) A single exception to adverse rulings on several requests for a verdict — when unavailing.] Where plaintiff moves for a verdict on the whole case, and on a counterclaim, and on the question of damages, uniting the several requests and taking but one exception to an adverse ruling, if he is not entitled to have all granted the single exception is unavailing. (Myers v. Rosenback, 14 Misc. Rep. 638 [1895].) Exceptions to direction of verdict — when new trial ordered.] Where the case goes up to the Gteneral Term on a verdict directed subject to its opinion without qualification, exceptions cannot be heard, the facts being uncontroverted ; but if exception to the direction of a verdict for the defendant is taken, it raises the question of plaintiff's right to go to the jury, and if the court finds that there is a question of fact, it will order a new trial. ( Clark- son V. Western Assurance Co., 92 Hun, 527 [1895].) Exception to direction of a verdict — question raised.] On an excep- tion taken to the direction of the court to the jury to find a verdict for the plaintiff, the question is raised whether there is any question to be submitted to the jury on conflicting evidence. (Rauth v. Scheer, 20 Misc. Rep. 689 [N. Y. City Ct. 1897].) Excepting to the direction of a verdict merely raises the question whether any issue of fact should have been submitted to the jury. (Walker V. Phoenix Ins. Co., 89 Hun, 333 [1895].) Question of special damages raised without exception to the direction of the verdict. (Sheldon v. Baumann, 19 App. Div. 61 [1897].) Request to court to direct a verdict — effect of.] When a defendant requests the court to direct a verdict in his favor he thereby assumes that there is no dispute as to the facts, and allows the justice presiding to be sub- stituted in the place of the jury, and is concluded by his findings. He cannot, therefore, upon appeal under a general exception to the subsequent direction of a verdict in favor of the plaintiff', insist that there were questions in the case which should have been submitted to the jury. (Strong v. The N. Y. 252 CouETS OF Kecoed. [Rule 32 Laundry Manuf. Co., 6 Hun, 528 [1876]. See Ormes v. Dauchy, 11 N. Y. Wkly. Dig. 142 [Court of Appeals, 1880].) Result of requests by both parties for the direction of a verdict.] Where both parties ask the direction of a verdict, the court determines the facts as well as the law. A direction in favor of plaintiff, where defendant was the sole witness in his own behalf, is conclusive of the issues of fact against him. (Guilford v. Mulkin, 85 Hun, 489 [1895] ; Schram v. Werner, 81 id. 561 [1894].) Exception to denial of request to direct a verdict, which fails to specify the ground thereof.] In such a case defendant cannot maintain his exception on appeal on showing that the facts found did not authorize the verdict, provided the failure of proof might have been supplied if the atten- tion of the opposite party had been called to the defect. (Haines v. N. Y. C. & H. R. R. R Co., 145 N. Y. 235 [1895].) Failure to except to a direction of judgment — only exceptions re- viewed.] In the absence of an exception to the direction of a judgment for plaintiff, the correctness of the decision cannot be reviewed, but only the exceptions taken on the trial. (Poulke v. Thalmessinger, 1 App. Div. 598 [1896].) Error in a charge based upon a fact assumed by all the parties to exist.] An exception to an error in the charge of a court as to the measure of damages will not be sustained on appeal when the charge was based upon a fact the existence of which was assumed by the court and both parties upon the trial. (Vail v. Reynolds, 42 Hun, 647 [1886].) Instruction to the jury in the absence of defendant's counsel.] If the court has no right to instruct the jury in the absence of defendant's counsel, tlie point is available without an exception. If the right exists but is abused, the point can be raised on a motion for a new trial which has been made on a case, and the appeal from the order denying a new trial brings the question before the appellate court. (Cornish v. Graff, 36 Hun, 160 [1885].) Objection to improper matter in a verdict — when to be taken.] Ob- jections to improper matter in a verdict should be ui-ged at the time the verdict comes in and before it is recorded, so that the jury may then be sent back to reconsider and correct it, as they see fit, either in form or substance; otherwise the objection will, on appeal, be deemed to have been waived. (Brigg V. Hilton, 99 N. Y. 517 [1885].) REVERSAL WITHOUT NEW TRIAL — Judgment for appellant without new trial.] When the General Term may order a judgment for the appellant without directing a new trial. (Price v. Price, 33 Hun, 432 [1884].) EVIDENCE ON APPEAL — When the court will, on appeal, receive a doc- ument imperfectly described in the case.] Where one of the conditions of a lease was very imperfectly shown upon the hearing of a motion, the General Term may, upon the appeal from the order, receive such lease for the pur- pose of ascertaining the fact. (Moller v. Duryea, No. 2, 21 Wkly. Dig. 459 [Sup. Ct. 1885].) Documentary^ evidence on appeal — when allowed.] The practice of allowing documentary evidence to be given on appeal is confined to supply- Eule 32] General Rules of Peactice. 253 ing defects in proof already given on tlie trial of the same facts. Independ- ent and additional evidence is not allowed, especially if other counter evidence might have been given had the question been raised at the trial. (Hall v. The United States Reflector Company, 21 Wkly. Dig. 37 [Gen. T. 188.5].) Production of record of certificate of tax sale on appeal.] A record may be produced on the hearing of an appeal from a judgment to sustain the judgment as a record of the certificate describing the property sold on the tax sale. (Toole v. Bd. of Supervisors of Oneida, 1,3 App. Div. 471 [1897].) Receiving a decree on appeal to sustain a judgment.] Where no ques- tion was raised at the trial as to the appointment of plaintiff as administra- tor, though the pleadings put it in issue, held, that to sustain a judgment in his favor a certified copy of the decree appointing him could be filed on appeal. (Hewett v. Chadwick, 8 App. Div. 23 [1896].) A record may be produced for the first time before an appellate court. (Harlem B. M. & F. R. Co. v. Town Board, 87 Hun, 270 [1895].) Admissions.] Admissions not received in evidence upon the trial, not received on appeal. (People ex rel. Mardiattan R. Co. v. Barker, 14G N. Y. 304 [1895].) Court of Appeals — confined to findings of fact by referee.] The Court of Appeals is confined to the findings of fact made by a referee and is not permitted to look into the record for additional facts. (Sweet v. Henry, 175 N. Y. 268 [1903].) Court of Appeals cannot entertain appeal involving nothing but a ques- tion of costs.] (Matter of Croker v. Sturgis, 175 N. Y. 158 [1903].) STATEMENT ON APPEAL — To Court of Appeals.] When a judgment is rendered by the General Term upon a verdict taken subject to the opinion of the court, and a statement of facts with the questions or conclusions of law thereon is prepared as required by section 333 (subd. 2) of the Code of Procedure and is ma,de part of the record, the facts presented in the state- ment are the only ones which can be considered upon appeal. (Jaycox v. Cameron, 49 N. Y. 645 [1872].) Verdict subject to opinion of the court — statement required.] On ap- peal to the Court of Appeals from a judgment entered at General Term, " upon a verdict subject to the opinion of the court," the return must contain a "statement of the facts, of the questions of law arising thereupon, and of the determination of those questions by the General Term," as required by the Code of Civil Procedure (§ 1339) ; without such a statement the appeal may not be heard. (Cowenhoven v. Ball, 118 N. Y. 231 [1890].) Where a verdict is taken subject to the opinion of the court at Gen- eral Term, the judgment of the General Term thereon cannot be reviewed in the Court of Appeals unless a statement of the facts and conclusions of law is prepared and filed with the judgment-roll, as prescribed by the Code of Pro- cedure, section 333. (Reinmiller v. Skidmore, 59 N. Y. 661 [1875].) A state- ment of facts is essential to a review in the Court of Appeals. (Bridger v. Weeks, 30 N. Y. 328 [1864]; Leland v. Cameron, 31 id. 115 [1865]; Doty v. Carolus, Id. 547 [1865]; Essex County Bk. v. Russell, 29 id. 673 [1864].) 254 Courts of Recced. [Rule 32 GENERAL TERM — Review of facts by.] Where the General Term has a right to review the facts on appeal from a judgment entered upon the report of a referee, it is its duty to pass upon them from the evidence. (Godfrey v. Moser, 66 N. Y. 250 [1876].) APPELLATE DIVISION — Review of facts by.] The Appellate Division has power on appeal from a judgment of the Municipal Court of the city of New York to review the facts and reverse the judgment. (Blumenthal v. Levy, 82 App. Div. 536 [1903].) When order of, reviewable by Court of Appeals.] An order of the Appellate Division reversing, solely upon questions of law, an order denying an application by a purchaser at a partition sale to be relieved of his pur- chase is reviewable by the Court of Appeals. (Parish v. Parish, 175 N. Y. 181 [1903].) When Court of Appeals concluded by unanimous decision of.] When a judgment upon a decision of the trial court is unanimously affirmed by the Appellate Division, the Court of Appeals is concluded thereby. (Hutton V. Smith, 175 N. Y. 375.) COUNTY COURT — Judgment on the report of a referee.] In an action commenced in a Justice's Court and retried, how reviewed. Motion for new trial need not be made in the County Court. (Cook v. Darrow, 22 Hun, 306 [1880].) STENOGRAPHER'S MINUTES — Use of — disapproved.] The practice of using the stenographer's minutes as the evidence in the " case " condemned. (Howland v. Woodruflf, 60 N. Y. 73 [1875] ; Jewell v. Van Steenbiu-gh, 58 id. 85 [1874]; Ryan v. Wavle, 4 Hun, 804 [1875].) When they control.] Where in the settlement of a case there is a dispute as to words, the stenographer's minutes must control. (Xelson v. N. Y. C. & H. R. R. R. Co., 1 Law Bull. 15 [Com. PI. Sp. T. 1878].) How corrected.] The remedy for a stenographer's neglect to note an exception is by moving to resettle the ease. (Toner v. Mayor, 1 Abb. N. C. 302 [Chamb. 1876].) Matter not appearing in minutes.] It is the duty of the trial judge, and not of the stenographer, to settle a case, and it is no answer to a motion to correct a case by inserting matters alleged to have taken place on the trial that they do not appear in the stenographer's minutes. (Foster v. Standard Nat. Bank, 21 Misc. 8 [1897]. See Code of Civil Procedure, § 1007.) Copy of stenographer's minutes; when the amount paid for them will not be allowed as a disbursement.] The plaintiff procured from the stenog- rapher a copy of his minutes taken on a trial and paid therefor $40, which was allowed as a disbursement. The trial judge made a certificate in which he stated that on the trial he desired the stenographer's minutes to be fur' nished to the court and that the stenographer's fees be taxed as a disburse- ment. Held, that as it did not appear that the plaintiff's copy was procured or used for that purpose, the item should have been disallowed. (Pfandler Barm Extracting Company v. Pfandler, 39 Hun, 191 [1886].) When allowed as a disbursement.] Tn the First Department the cost of a copy of the stenographer's minutes obtained to prepare amendments to Eule 33] General Rules of Peactioe. 265 a case on appeal is a taxable disbursement, since by Rule 32 a party pro- posing amendments to a case must refer at the end of each amendment to the proper page of such minutes, and this compels the party proposing such amendments to procure a copy of the minutes. (Ridabock v. Metropolitan El. R. Co., 8 App. Div. 309 [1896]; Park v. N. Y. C. & H. R. R. Co., 57 id. 566 [1901].) Stenographer's minutes in capital cases.] Upon an appeal in a capital case it is the duty of the county clerk to cause the stenographer's minutes to be printed literally as filed, without change or alteration of any kind made after that date. As to whether the power exists in the court to correct errors or make changes in the minutes after they have been filed, upon due notice to the defendant to be heard, quwre. Where changes have been made in the record by the county clerk, the Court of Appeals has jurisdiction, upon an application of the defendant, to direct the clerk to make and print the record required by statute. (People V. Conroy, 151 N. Y. 543 [1897].) ACTS AND GESTURES OF WITNESSES — Wot presented by case.] Evi- dence consisting of acts and gestures of witnesses is not presented to the appellate court by a bill of exceptions, and where it does not present a por- tion of the evidence, the court must assume that such evidence was sufficient to authorize the charge by the judge below. (Mahoney v. The People, 3 Hun, 202 [1874].) View of premises by a referee.] Eifect on an appeal of the fact that a referee has by consent of the parties inspected certain premises and acted upon the knowledge so acquired. (Clafiin v. Meyer, 75 N. Y. 266 [1878].) As to points, see notes under Rule 41. KULE 33. Omitting to Make a Case or Serve Amendments — Effect of. If the party shall omit to make a case within the time above limited, he shall be deemed to have waived his right thereto ; and when a case is made, and the parties shall omit, within the several times above limited, the one party to propose amendments, and the other to notify an appearance before the jiidge or referee, they shall respectively be deemed, the former to have agreed to the case as proposed, and the latter to have agreed to the amendments as proposed. Rule 35 of 1858. Eule 42 of 1871. Rule 42 of 1874. Rule 33 of 1877, amended. Rule 33 of 1880. Rule 33 of 1884. Rule 33 of 1888, amended. Rule 33 of 1896. See notes under Rule 32. 256 CouETS oi<' Eecoed. [Rule 33 CODE OF CIVIL PROCEDURE. § 997. Case on appeal or on a motion for a new trial — when necessary. § 998. When not necessary. FAILURE TO SERVE A CASE — Practice on.] This court will no longer allow judgments to be affirmed on the call of the calendar at General Term if the case has not been settled and filed (36 How. Prac. 366 [1869]); nor can the respondent move to dismiss the appeal upon a certified order of the Special Term declaring the appeal abandoned and uj^on the judgment-roll on file. He should apply for an order putting the case on the General Term calendar, and, upon an affidavit of the nonservice of the appeal papers and on notice to the appellant for the earliest motion day in term, move to strike the cause from the calendar and for judgment of affirmance. (CaiTaher i-. Carraher, 1 J. & S. 502 [Gen. T. 1871]; S. C, 11 Abb. [N. S.] 338; 42 liow. Prac. 458; Phelps v. Swan, 2 Sweeny, 696 [Gen. T. 1870]; Ward v. Central Park, North & East R. R. R. Co., Id. 701 [Gen. T. 1870] ; Sun Mut. Ins. Co. v. Dwight, 1 Hilt. 50 [Gen. T. 1856]; contra, Deters v. Groupe, 15 Abb. 263 [Gen. T. 1862] ; S. C, 9 Bosw. 638.) Appeal cannot be dismissed for.] An appeal cannot be dismissed because of the failure of the appellant to serve a case and exceptions within the time prescribed tlierefor; the only effect of the omission is to compel the party to argue his appeal on the judgment alone. (Berger v. Dubernet, 7 Rob. 1 [Gen. T. 1867] ; Phelps v. Swan, 2 Sweeny, 697 [Gen. T. 1870] ; Brown v. Hardie, 5 Rob. 678 [Gen. T. 1867] ; Rankin v. Pine, 4 Abb. 309 [Gen. T. 1857].) Appeal not dismissed for failure to procure the settling and signing of a case.] An appeal should not be dismissed for failure to procure the case to be settled and signed, since the appellant may appeal upon the judgment- roll alone. (Brush v. Blot, 11 App. Div. 626 [1896].) Case — not necessary for a review in all cases.] A party desiring to appeal from a judgment entered upon a decision of the court is not obliged to prepare a case to be settled, but he may file exceptions to the findings of the trial court upon questions of law and have his appeal heard upon those exceptions. (Schwartz v. Weber, 103 N. Y. 658 [1886].) Failure to settle case or order it on file.] Where a case on appeal has never been settled nor ordered on file by anyone who participated in any portion of the proceedings, it must be stricken from the calendar. (Williams V. Lindblom, 87 Hun, 303 [1895].) Failure to serve a case.] The Rules of Practice alone make the prep- aration of the case on appeal necessary, and failure to serve a case does not fall within the provisions of Code of Civil Procedure (§ 1303) relative to mistakes or defects in perfecting an appeal. (Odell v. McGrath, IG App. Div. 103 [1897].) Motion to dismiss — what to be shown on.] What should be shown on motion to dismiss an appeal for not serving papers. (Phelps v. Swan, 2 Sweeny, 690 [Gen. T. 1870].) Eule 34] Geneeal Kules op Peactice. 257 Default — when opened.] A judgment by default, at a General Term, dismissing an appeal for not serving copies of the case in due time, will, on application to the Special Term, be opened, where the appellant shows that the action and all the proceedings therein were wholly neglected by his attor- ney and counsel in consequence of his being rendered by his habits incompe- tent to take charge of them. (Elaton v. Schilling, 7 Rob. 74 [Sp. T. 1868].) Application for relief from default in serving a case should be made to the court from the judgment on which the appeal is taken. (Odell v. McGrath, 16 App. Div. 103 [1897].) What must be shown to open default.] Where a party makes default in filing his case on appeal, without applying for an extension of time, not only good grounds for the delay must be shown, but also for not having procured an extension of time, in the absence of which proof the appeal will be dismissed. (Gamble v. Lennon, 9 App. Div. 407 [1896].) Abandonment of the appeal — default in having a case signed and filed.] Default in having a case on appeal signed and filed, within ten days after it has been settled, works an abandonment of the appeal, and relief can only be had by motion in the court or branch of the court from which the appeal was taken. (Rothschild v. Rio Grande Western Ry. Co., 9 App. Div. 406 [1896].) Surety — liability of.] Where an appeal to the General Term is dis- missed for a failure to serve the printed case and exceptions required by Rule 50 of the Supreme Court, the sureties on the undertaking on appeal given under sections 334 and 335 of the Code of Procedure are liable to the same extent as if the judgment had been affirmed. (Wheeler v. McCabe, 5 Daly, 387 [N. Y. Com. PI. 1874].) Time to make case.] The time to make a case runs from the time of the trial before a jury or of the motion for a new trial. (Kenney v. Sumner, 12 Misc. Rep. 80 [N. Y. Com. PI. 1895].) Failure to serve as to one defendant.] Where case and exceptions was not served on one in whose favor a judgment had been rendered, the appeal as to him brought up only the judgment-roll for review. (Mcllvaine v. Stev- enson, 90 App. Div. 77.) ETJIE 34. Case and Bill of Exceptions; Contents; Resettlement; Exhibits. A bill of exceptions shall contain only so much of the evidence as may be necessary to present the questions of law upon which exceptions were taken on the trial ; and it shall be the duty of the judge upon settlement to strike out all the evidence and other matters which shall have been unnecessarily inserted. A case or exceptions shall not contain the evidence in haec verba, or by question and answer, unless ordered by the judge or referee by or before whom the same shall be settled. But the facts of the case, together with the rulings on the trial, shall be 17 2i58 CouETs OF Eecoed. [Rule 34 stated in a narrative form, except that where it is claimed by either party that any particular testimony should be given in haec verba, the judge or referee who settles the case shall deter- mine whether or not a proper presentation of the case for review requires such portion of the evidence to be so stated in haec verba, whereupon the case shall be made accordingly. With the pro- posed case the appellant may serve his stipulation that he desires to review only the conclusion of the jury, court or referee upon certain specified questions of fact; in which case, the case as settled shall contain all the evidence bearing upon such questions •of fact and so much of the evidence as may be necessary to present the questions of law raised by exceptions taken at the trial; and it shall be the duty of the judge or referee settling the case to strike out all other evidence and to certify that all the evidence relating to the questions of fact which the appellant desires to raise has been included in the case as settled; and upon appeal the Appellate Division shall not review any question of fact not speciiied in such stipulation. If any case or bill of exceptions does not conform to this rule, the court before which the same shall be brought for review may order the same back for resettlement. Exhibits shall not be printed at length unless the judge or referee so direct. When, upon nonenumerated motions, voluminous documents have been used which are material only as to the fact of their existence, or as to a small part of their contents, the parties may, by stipulation, or the court or judge below may, upon notice, settle a statement respecting the same, or the parts thereof to be returned upon the appeal from the order, to be used in place of the original documents. Rule 36 of 1858. Rule 43 of 1871, amended. Rule 43 of 1874. Rule 34 of 1877, amended. Rule 34 of 1880. Rule 34 of 1884. Rule 34 of 1888, amended. Rule 34 of 1896. Rule 34, as amended, 1910. See notes under Rule 32. BILL OF EXCEPTIONS — Contents of.] A bill of exceptions should only contain a concise statement of facts, presenting the points intended to be relied upon as ground of error, or simply so much of the evidence as may appear to be requisite for that purpose. (Tweed v. Davis, 1 Hun, 2,52 [1874].) Rule 34] General Rules of Peactice. 259 Settlement of — the court above cannot determine what occurred on the trial — mandamus.] The court cannot determine whether any particular thing occurred on the trial. That is necessarily within the province of the justice settling the case or bill. He cannot be compelled by mandamus to change his decision. (Tweed v. Davis, 1 Hun, 252 [1874].) — ^ One exception on the same point, sufficient.] If an exception be taken on substantially the same state of facts, and on the same point more than once, a single statement of it is all that is proper in a bill of exceptions. < Tweed v. Davis, 1 Hun, 252 [1874]; Dilleber v. Home Life Ins. Co., 69 N. y. 256 [1877] ; Carlson v. Winterson, 147 id. 652 [1895].) Exceptions — to be clearly stated.] It is the duty of an appellant, in preparing a bill of exceptions, to see tliat the points and exceptions upon which he relies are correctly and clearly stated. (Jewell v. Van Steenburgh, 58 N. Y. 85 [1874]; Colby v. Town of Day, 75 App. Div. 211 [1902].) An escaped prisoner cannot have a bill of exceptions settled.] A pris- oner who has escaped cannot compel the court to settle a bill of exceptions. (People v. Genet, 50 N. Y. 80 [1872].) Settled at subsequent term — presumption.] A bill of exceptions set- tled at a term subsequent to the trial, where there was no objection made at the time of the settlement, or application made to correct the record, upon the ground that the bill of exceptions was improperly inserted, will be presumed to have been made by consent, and an- objection first taken on the argumont of the case in the Court of Appeals v.'ill not prevail. (Wood v. The People, 59 N. Y. 117 [1874].) When questions of law only presented — insertion of all the evidence is improper.] On the settlement of a case presenting only questions of law the insertion therein of all the evidence is improper. (Markwell v. Oceanic Steam Nav. Co., 8 Hun, 547 [1876].) Not sufficient — where evidence consists of acts.] Upon the trial of the plaintiff in error for robbery in the first degree, the complainant described the alleged robbery, not only by w.ords but by acts, exhibiting to the jury the manner and mode of its commission. The judge charged that the evidence of the complainant was sufficient, if believed, by the jury, to justify the con- viction of the prisoner. Upon a writ of error, held, that, as the bill of excep- tions did not present a portion of the evidence, viz., the acts exhibited to the jury, the court must assume that such evidence was sufficient to authorize the charge. (Mahoney v. The People, 3 Hun, 202 [1874].) Separation of exceptions from the case.] Separation of exceptions from a case and exceptions, to be made in the manner prescribed by the Gen- eral Rules of Practice. (Code of Civil Procedure, § 997.) Form of a case and exceptions intended to review rulings upon testi- mony only.] Under such circumstances the case should contain so much of the evidence and proceedings as is material to present the questions and excep- tions sought to be reviewed, and it is not material whether the evidence be set out in terms or a statement of its effect be made. (Hubbard v. Chapman, 28 App. Div. 577 [1898].) 260 CouETs OF Eecord. [Kule 35 Failure to reduce evidence to narrative form, precludes settlement by trial judge.] The trial judge will not settle a case which does not comply with the rule requiring the evidence to be reduced to narrative form, and the rulings excepted to to be formally stated, followed by a formal statement that the same were excepted to. (Donai v. Lutjens, 20 Misc. Rep. 221 [Sup. Ct. Sp. T. 1897].) — —Duty of attorney.] Attorneys must not shirk labor that tends to concise records, and court may impose costs of printing records on the plain- tiff where he .refused to settle a statement as to the contents of certain judg- ment-rolls which were used by them in opposition to motion to vacate judg- ment on appeal, but insisted on printing them in full. (HoU v. Builders' Con- struction Co., 127 App. Div. 727.) RULE 35. Case to be Signed and Filed. Kule 35 repealed, 1910. CODE OF CIVIL PROCEDXTEE. § 1280. Controversy submitted without action — on filing of papers it be- comes an action. See notes under Rule 32. ORIGINAL PAPERS — Must be filed.] Under this rule the moving party must, within ten days after the settlement of the ease, file with the clerk of the court a copy of the case as settled, and the original papers; that is, the case and amendments as they came from the judge or referee, with the cor- rections or allowance® made by him. (Parker v. Link, 26 How. Prac. 375 [Sp. T. 1864].) EXTENSION OF TIME — To file case.] The covu-t has power to enlarge the time to file exceptions and serve a case, notwithstanding the prescribed period for so doing has elapsed. (Strong v. Hardenbergh, 25 How. Prac. 438 [Gen. T. 1862] ; Sheldon v. Wood, 14 id. 18 [Sp. T. 1857] ; Bortle v. Mellon, 14 Abb. 228 [Sp. T. 1862]. See Beach v. Gregory, 3 id. 78 Gen. T. 1856]; S. C, 2 id. 204.) Does not extend time to appeal.] An extension of the time to file and serve exceptions, or to serve a case with exceptions, does not extend the time to serve a notice of appeal; nor does an extension of the time to appeal, per se, extend tlie time to file and serve exceptions, or a case with exceptions. (Sails v. Butler, 27 How. Prac. 133 [Gen. T. 1863].) Failure to file case — remedy of respondent.] Where the appellant fails to file the case in accordance with Rule 33, the respondent should take an order to file the same, and should move to strike the cause from the cal- endar, and for judgment ; his remedy is not a motion that the appeal be dis- missed. (Davidge v. Coe, 30 St. Rep. 793 [N. Y. Supr. Ct. 1890].) Kule 35] Geneeal Eules of Peagtige. 261 Failure to file case — remedy of appellant.] Where appellant's attor- ney has failed to obtain the signature of the judge, and file the case within ten days after its settlement, his proper course is a motion to open his default, when, if the application is granted, he will be in a position to have his case regularly filed. (Rothschild v. Rio Grande R. Co., 9 App. Div. 406 [1896].) Default in filing case — excuses necessary to prevent dismissal of appeal.] Where a party makes default in filing his case on appeal, without applying for an extension of time, not only good grounds for the delay must be shown, but also -satisfactory reasons why an application for e.Nitension of time was not made before the time expired, in the absence of wliich proof the appeal will be dismissed. (Gamble v. Lennon, 9 App. Div. 407 [1896].) Default in procuring, signing and filing of case — relief.] Default in having a case on appeal signed and filed within ten days after it has been settled works an abandonment of the appeal, and relief can only be had by motion in the court or branch of the court from which the appeal was taken. (Rothschild v. Rio Grande Western Ry. Co., 9 App. Div. 406 [1896].) See notes on page 238. Power to compel the filing of a case after its abandonment.] A plain- tiff having been nonsuited', her attorney made a ease and exceptions, which were settled and ordered filed. He, however, neglected to file them, and served the defendant with a notice that the case and exceptions had been abandoned, and ten days later began a new action. The defendant then procured an order requiring the plaintiff to file the case and exceptions. Held, that the court had no power to grant the order. (Noonan v. N. Y., L. E. & W. R. R. Co., 63 Hun, 600 [1892].) Where the trial justice enters an order declaring the appeal abandoned, a motion will not lie in the Appellate Term to open his default in having failed to file and serve his printed case. (Baylor v. Levy, 113 N. Y. Supp. 802.) EVIDENCE — A case is prima facie evidence of the facts stated in it.] After a case or exception shall have been settled and filed with the clerk, it may be taken, in the further progress of the action, as prima facie evidence of the facts therein stated. (Van Bergen v. Ackles, 21 How. Prac. 314 [Sp. T. 1861].) DISMISSAL OF APPEAL — Failure to procure settlement and signing of case.] An appeal should not be dismissed for a failure to procure a case to be settled and signed, since the appellant may appeal upon the judgment-roll alone. (Brush v. Blot, 11 App. Div. 626 [1896].) Failure to renotice case for settlement, after substitution of attor- neys.] Where, after a case on appeal was settled, respondent's attorney died, and another attorney was substituted, but no proceedings were taken to have the case settled, held, that while the appellant was chargeable with laches in failing to re-notice the case for settlement, an absolute dismissal of the appeal would not be ordered, no order directing the ease to be filed or declaring it abandoned having been procured by respondent. (N. Y. Land & Improvement Co. V. Chapman, 14 Misc. Rep. 187 [N. Y. Sup. Ct. 1895].) 262 lOouKTs OF Eecoed. [Rule 36 RULE 36. Issue of Fact — Neglect to Bring to Trial — Causes Where an Attachment Has Issued or the Defendant is Under Arrest Preferred — Calendar Practice. Whenever an issue of fact in any action pending in any court lias been joined, and the plaintiff therein shall fail to bring the same to trial according to the course and practice of the court, the defendant, at any time after younger issues shall have been tried in their regular order, may move at Special Term for the dismissal of the complaint, with costs. If it be made to appear to the court that the neglect of the plaintiff to bring the action to trial has not been unreasonable, the court may permit the plaintiff, on such terms as may be just, to bring the said action to trial at a future term. Whenever in any action an issue shall have been joined, if the defendant be imprisoned under an order of arrest, in the action, or if the property of the defendant be held under attachment, the trial of the action shall be preferred. Every cause placed upon the calendar of the Trial Term or Special Term for the trial of equity cases shall be moved for argu- ment or trial when reached in its order, and shall not be reserved or put over except by the consent of the coiirt unless otherwise . permitted by special rule ; and if passed without being so reserved or put over, it shall be entered on all subsequent calendars as of date when passed, and no term fee shall be taxed thereon for any subsequent term. Rule 45 of 1874. Rule 36 of 1877, amended. Rule 36 of 1880. Rule 36 of 1884. Rule 36 of 1888, amended. Rule 36 of 1896, amended. CODE OF CIVIL PROCEDURE. I 791, subd. 10. Preference on calendar given wherever it is authcized by the General Rules of Practice or by special order. § 792. Preference in the case of mandamus or prohibition. I 79*3. Where the preference depends upon faces vehich do not appear — order on notice necessary. % 821. Dismissal of complaint for failure to serve summons upon codefend- ant of applicant. § .8£2. Where plaintiff unreasonably neglects to proceed in the action. Kule 36] General Rules of Practice. 263 § 978. Arrangement on calendar and disposition of issues. § 979. Disposition of the issues when no jury is present. § 980. Either party may bring the issues to trial. FAILURE TO PROSECUTE — Dismissal — as to rule in districts other than the first.] In an action in which there is but one defendant, his only remedy for the failure of the plaintiff to bring the cause to trial is to notice it for trial on his part and take judgment of dismissal if the plaintiff fail to appear when called. (Winchell v. Martin, 14 A'bb. Pr. [N. S.] 47 [Sp. T. 1872], and note. See Society for Ref., etc., v. Newberger, 2 Law Bulletin, 93 [18S0].) What not sufficient delay to defeat a motion for a dismissal.] What is not such delay in moving to dismiss for want of prosecution as will defeat the motion. (Hawley v. Seymour, 8 How. Prac. 96 [C. and Sp. T. 1853].) Cause reserved for three years — motion to dismiss denied.] Where a cause has been reserved generally for a period of nearly three years, a motion to dismiss should be denied upon the offer of plaintiff to try the ease the first day of the next term. (Clare v. Crittenden, 34 St. Rep. 120 [Sup. Ct. 1890].) Failure to proceed for two years — not a ground for the dismissal of the complaint.] A complaint should not be dismissed nor an injunction order vacated in an action to enforce liability of stockholders, simply for a failure to proceed with the suit for two years. (Cochrane v. American Opera Co., 30 St. Eep. 13 [Sup. Ct. 1890].) Failure to proceed.] A cause should not be treated as a live issue solely for the attorney's protection, as his rights accrued when he had notice of the settlement. (Crisenza v. Auchmuty, 121 App. Div. 611.) When plaintiff has done nothing to bring action to trial for three years after issue joined, a prima fade case of laches is established, the plain- tiff is under the burden of showing a good excuse. (Regan v. Milliken Bros., 123 App. Div. 72. See Andrews v. Hedden & Sons Co., 116 App. Div. 231.) When laches of defendant will bar order dismissing complaint for un- reasonable delay. (Jacob v. Marks, 26 Misc. Rep. 670.) Wlien plaintiff fails to do anything for three years, prima facie case of unreasonable neglect is made out. (Fisher Malting Co. v. Brown, 92 App. Div. 251.) When defendant estopped to charge plaintiff with laches. (McHugh v. Met. St. Ry. Co., 52 Misc. Rep. 588.) When defendant has not 'served notice he cannot move case for trial. (Haberstitch v. Fischer, 67 How. Prac. 318.) Failure to proceed for nearly six years, is prima facie case of unrea- sonable delay.] A prima facie case of unreasonable delay in prosecuting action is presented, where it has remained at issue for nearly six years with- out any step being taken by plaintiff to bring it to trial, where younger issues have been tried. (Seymour v. Lake Sbore & M. S. R, Co., 12 App. Div. 300 [1896]; Zafarano v. Baird, 80 App. Div. 144 [1903].) Failure of defendant to notice the case for trial, and other circum- stances, justify denial of motion to dismiss th; complaint on conditions — reasonable conditions.] Where, though an action of ejectment had been pend- ing for three years, without steps being taken to bring it to trial, defendant 264 CouETS OF Recoed. [Rule 36 did not put it on the calendar and no case against another defendant mig'ut be brought as a test case, held, that a motion to dismiss the complaint for want of prosecution might properly be denied on condition of the payment of costs of the motion and stipulating to proceed before a referee. (Graham v. Ackley, 21 App. Div. 416 [1897].) Dismissal for failure to prosecute when properly denied — what are unreasonable conditions of relief.] Plaintiff neglected for three years to bring an action of ejectment to trial, and meanwhile younger issues on the calendar were reached and tried. Defendant had the option of putting the case on tile calendar and moving it for trial, but failed to do so. Held, that a motion to dismiss for want of prosecution might properly be denied upon reasonable conditions, but that conditions that plaintiff should consent to the creation of a lien in favor of the defendant upon the land, for a large sum, in addition to paying costs, were unreasonable. (Grah-aan v. Ackley, 41 App. Div. 416 [1897].) What laches justify dismissal.] Where a motion is made in November, 1898, 'to dismiss for want of prosecution, the complaint in an action which was at issue in March, 1894, and the plaintiff, upon an affidavit, stating that he had forgotten the pendency of the action, and that he was desirous of going to trial, and that if the motion were denied, he would immediately place the cause on the calendar for trial, obtains an order denying the motion on condi- tion that he serve notice of trial and place the cause on the calendar for the next term, and pay the costs of the motion, it is inciunbent upon him promptly to enter the order, and to comply with the conditions imposed, and, upon his unexcused failure so to do, the Ajipellate Division considered that upon a renewal of the motion made in March, 1899, the Special Term should have dismissed the complaint. (Silverman v. Baruth, 42 App. Div. 21 [1899].) Laches of defendant who has set up counterclaim,] Where a defend- ant has imposed a counterclaim and has demanded thereon affirmative relief in an action triable by a jury, his motion to dismiss the complaint for the plaintiff's conceded unreasonable delay in the prosecution will be denied where the defendant himself has never tried to bring the case to trial as he also is an actor in the case and should make at least a reasonaJble effort to try it. ( Jaeot V. Marks, 26 Misc. Eep. 670 [N. Y. Sp. T. 1899].) Direction of judgment for a counterclaini, improper.] The court has no power in dismissing an action for wani of prosecution, to direct judgment for the amount of a counterclaim to which a reply lias been interposed. (Ves- sell V. Marks, 10 Misc. Rep. 46 [City Ct. of N. Y. Gen. T. 1894].) Discharge from jail of a defendant who fails to pay aUmony.] In an action for separation, it rests with the discretion of the court to grant a motion to discharge defendant, who, having failed to pay alimony as ordered, has been in jail for seven months, unless the plaintiff, who, during that time, has not noticed the case for trial or put it on the calendai', agrees to try it at the next term. (Tabor v. Tabor, 42 St. Rep. 16 [N. Y. Supr. Ct. 1891].) Remedy where the case is not at issue.] Remedy where the case is not at issue as to all the defendants. (Morris v. Crawford, 16 Abb. 124 [Gen. T. 1863].) ., ,^_,__ Rule 36] General Rules of Phactice. 265 Dismissal for laches of plaintiff, discretionary.] Where a motion to dismiss an action is predicated upon the laches of the plaintiff therein, which the plaintiff endeavors to explain upon the motion, the determination whether such explanation is sufficient rests in the discretion of the court in which the motion is made, and its conclusion will not, ordinarily, be disturbed. (Mof- fett, Hodgkins & Clarke Co. v. Peoria Water Co., 83 Hun, 73 [1894].) Motion therefor may be noticed before the filing of a note of issue.] A cause need not be placed upon the calendar by the filing of a note of issue, before a notice of trial and a notice of motion for a preference can be served, although the motion cannot be granted until the case is upon the calendar. So held in a case where the preference was on the ground of an attachment issued. (Warden v. Post Steamboat Co., 39 App. Div. S43 [1899].) MOTION TO DISMISS — Proper although the defendant has served a cross notice of trial.] Although the defendant serves a cross notice of trial, but the cause is never put upon the calendar, he is at liberty to move at Chambers to have the cause dismissed for want of prosecution. ( Chilcott v. Wadding- ham, 1 Law Bulletin, 50 [Sp. T. 1879]. See, however. Miller v. Ring, 18 Abb. 244 [Sp. T. 1864]; Fuller v. Sweet, 9 How. Prac. 74 [Sp. T. 1853]; Thompson V. Krider, 8 id. 248 [Sp. T. 1853] ; MoeUer v. Bailey, 14 id. 359 Sp. T. 1855].) Right to move to dismiss — not waived.] Defendant's right to move to dismiss tlie complaint for failure to prosecute, is not waived by his service of a notice of trial, where the cause is not put upon the calendar, nor is he required t» place the cause on the calendar before making the motion. (Israel V. Voight, 12 Misc. Rep. 206 [1895].) Defendant may move without giving notice of trial.] Defendant may move to dismiss witliout being himself bound to give notice of trial. (Roy v. Thompson, 8 How. Prac. 253 [Sp. T. 1852].) Where both parties notice for trial — neither can move.] Neither party can move to dismiss where both notice the cause for trial. (Thompson V. Krider, 8 How. Prac. 248 [C. and Sp. T. 1853] ; Moeller v. Bailey, 14 id. 359 [Sp. T. 1855].) The granting of the motion is in the discretion of the court.] It is discretionary with the court to grant or refuse an application to dismiss the complaint for want of prosecution. (Moifett, Hodgins & Clarke Co. v. Peoria Water Co., 83 Hun, 73 [1894]; Osborne v. Sellick, 5 Wkly. Dig. 589 [Sp. T. 1878]; Perkins v. Butler, 42 How. Prac. 102 [Sp. T. 1871].) One of several defendants may move to have the complaint dismissed. as to him.] Where there are several defendants and the plaintiif fails to prosecute his action, one defendant may move to have the complaint dis- missed as to him. (Ward v. Dewey, 12 How. Prac. 193 [Sp. T. 1854] ; Salters tr. Pruyn, 15 Abb. 224 [Sp. T. 1802].) What the defendant must show on the motion.] The defendant on the motion must show that the cause was at issue, so that it could have been noticed, and that younger issues were tried. (Roy v. Thompson, 8 How. Prac. 253 [Sp. T. 1852].) 266 CouETs OF Kecobd. [Rule 36 A dismissal is a judgment for defendant.] A dismissal for want of prosecution is a judgment in favor of the defendant. (Tillspaugh v. Dick, .8 How. Prac. 33 [Sp. T. 18.53].) Motion not proper, pending a stay of plaintiff's proceedings.] A motion to dismiss for want of prosecution cannot be made pending a stay of plaintiff's proceedings until the payment of the costs of a former action. (Unger v. Forty-second St. R. R. Co., 30 How. Prac. 443 [N. Y. Supr. Ct. Sp. T. 1866].) Effect of one of several defendants dying.] Effect of the death of one of several defendants. (See Chapman v. Foster, 15 How. Prac. 241 [Sup. Ct. Sp. T. 1859]; Code of Civil Procedure, §§ 755-766.) That plaintiff is dead, and no representatives can be found, no excuse.] It is no excuse, on a motion to dismiss for want of prosecution, that the plaintiff is dead and no representative can be found. (Crawford v. White- head, 1 Code Rep. [N. S.] 355 [Sp. T. 1851].) Refusal of referee to proceed unless his fees are paid — a ground for dismissal.] Where a referee refused to proceed with the trial unless his fees were secured to him, the defendant, after two years, moved to dismiss for want of prosecution, and the motion was granted unless the plaintiff should proceed within ninety days. (Ellsworth v Brown, 16 Hun, 1 [1878].) PREFERENCE — Plaintiff may obtain preference on the ground of the defendant's arrest or attachment.] The preference of a cause on the ground of the defendant's imprisonment under an order of arrest in the action or the attachment of his property is available, not merely to the defendant who is under arrest or whose property has been attached, but also to the plaintiff, and the plaintiff may move to obtain such preference. (Knox v. Dubroff, 17 App. Div. 290 [1897].) And this right does not depend upon the value of the property attached. (McCloskey v. Bridge Company, 26 App. Div. 628 [1898].) Definition of "trial" or "hearing."] For the meaning of the word "trial" or "hearing" in section 791 of the Code of Civil Procedure, see Hoff- man V. Connor (New York Daily Register, June 12, 1878). By Rule 36, not only the defendant, who is under arrest, or whose property has been attached, but also the plaintiff, is entitled to make a motion that the cause be referred.] (Knox v. Dubroff, 17 App. Div. 290 [1897]. Calendar practice discussed in Ward v. Smith, 103 App. Div. 375.) When party waives right to preference in First Department. (Eck- hart V. Jones, 45 App. Div. 562.) Party entitled to preference may withdraw former notice and serve new one. (Gilbert -v. Finch, 46 App. Div. 75.) — ■ — Statement at foot of notice of trial that motion will be made to place case on short cause calendar not sufficient. (Williamson v. Standard Struc- tural Co., 48 App. Div. 186.) Section 793, as amended by chap. 173, Laws 1904, held unconstitutional in 181 N. Y. 531. Eule 37] Geneeal Eules of Practice. 267 EULE 37. Notice for Argument and of Motions; Order to Show Cause; Where Return- able; Effect of Order Staying Proceedings When Made Within Ten Days of Trial Term; Irregularities to be Stated; Judgment by Default in Divorce Cases. All questions for argument, and all motions made at Special or Trial Terms shall be brought before the court on notice, of not less than eight days, unless a shorter time is prescribed by a judge or court, under section 780 of the Code, by an order -to show cause, except that where the attorneys for the respective parties reside or have their offices in the same city or village, siich notice may be a notice of five days ; if the opposite party shall not appear to oppose the party making the motion shall be entitled to -the order or judgment moved for, on proof of due service of the notice or order and papers required to be served by him, unless the court shall otherwise direct. If the party making the motion shall not appear, the court shall deny the motion on the filing of the copy notice of motion, or order to show cause. Siich order to show cause shall in no case be granted unless a special and sufficient reason for requiring a shorter notice than eight days shall be stated in the papers presented, nor unless, in a case where the attorneys for the respective parties reside or have their offices in the same city or village, a special and suffilcient reason for requiring a shorter notice than five days shall be stated in the papers presented, and the party shall, in his affidavit, state the present condition of the action, and whether at issue, and, if not yet tried, the time appointed for holding the next Special or Trial Term where the action is triable. An order to show cause shall also (except in the first judicial dis- trict) be returnable only before the judge who grants it, or at a Special Term appointed to be held in the district in which the action is triable. No order, except in the first judicial district, served after the action shall have been noticed for trial, if served within ten days of the Trial Term, shall have the effect to stay the proceedings in the action, unless made at the term where such action is to be tried, or by the judge who is appointed or is to hold such Trial Term, or unless such stay is contained in an order to show cause 208 CouKTS OF Eecoed. [Rule 37 returnable on the first day of such term, in which case it shall not operate to prevent the subpoenaing of witnesses or placing the cause on the calendar. When the motion is for irregularity, the notice or order shall specify the irregularity complained of. This rule, so far as it permits a judgment by default, or by the consent of the adverse party, shall not extend to an action for a divorce, or limited separation, or to annul a marriage. In the first judicial district, all motions must be noticed to be heard at and all orders to show cause must be returnable at the Special Term for hearing of litigated motions, except in cases where the special rules of the first judicial district shall require such motion to be made at some other term of the court. If a notice of motion is served ten days before the return day thereof, it may, immediately after the prayer for relief and before the signature, contain the following statement: "Answering affidavits must be served five days before the return day," in which case answering affidavits, in order to be used upon the motion, must be so served. The moving party, upon receiving such answering affidavits, may serve affidavits in reply at least two days before the hearing. Such replying affidavits shall be limited strictly to matters in reply. Affidavits in answer and reply cannot be read upon the motion if not so served, unless the court in its discretion, for good caiise shown, may otherwise order. Rule 39 of 1858. Rule 46 of 1871, amended. Rule 46 of 1874, amended. Rule 37 of 1877. Rule 38 of 1880, amended. Rule 37 of 1884, amended. Rule 37 of 1888, amended. Rule 37 of 1896, amended. Rule 37 of 1900, amended. Rule 37, as amended, 1910. CODE OF CIVIL PROCEDURE. § 767. An order defined. § 768. A motion defined. § 769. AVhere motions in the Supreme Court should be heard. § 770. In first district, motions which elsewhere must be made in court may be made to a j udge out of court — exception. § 771. Transfer of motion from one judge to another. §§ 772, 773. What judges may malce orders out of court. S 774. Review of order by another court. § 775. Stay of proceedings — when not to exceed twenty days. § 776. Second application for the same order. Eule 37] Geneeal Eules of Practice. 269 § 778. Penalty for violating tlie last section. § 779. Costs of motion, how collected — stay of proceedings. § 7S0. Notice of motion to be eight days — unless an oi-der to show cause be made. § 796. Notice or other paper may be served personally. § 797. Other modes of service allowed. § 798. Double time when served through the post office. § 799. When proper to be served on the attorney. § 800. When service may be made on the clerk for a nonresident. § 801. Service through branch post office in New York city. § 885. Deposition of witness to be used on motion, how taken, etc. §§ 986-989. Motion for change of place of trial. § 1229. In actions for divorce, etc., judgments can be rendered only by the court. § 1233. Motion for judgment on special verdict. § 1234. On verdict subject to the opinion of the court. § 1282. Jlotion to set aside judgment for irregularity, when it may be heard- § 1353. Upon what papers an appeal should be heard. § 1355. Hearing, etc., at the Appellate Division. §§ 1380, 1381. Motion for leave to issue execution after death of judgment- debtor. § 1564. Motion for payment of money in partition. § 1997. Provisions relating to motions and orders in proceedings instituted by State writ — same as in actions. ^ 2075. jMotion to set aside mandamus. § 2097. Motion to quash, ete., writ of prohibition. § 2373 et seq. Motion to confirm, etc., award of arbitrators. §§ 3236, 3251. Costs of motion. § 3277. Motion for judgment for not filing security for costs. MODE OF SERVICE OF NOTICE — It must, as a rule, be served person- ally, if not otherwise prescribed.] WTiere the law requires a notice to be given and does not prescribe the mode of service, it must, as a rule, be served personally. (Mitchell v. Clary, 20 Misc. Rep. 595 [Sup. Ct. App. T. 1897].) Service may be made on Saturday afternoon. (Nichols v. Kelsey, 13 Civ. Proc. R. 154.) Wlien service made by mail on last day, what must be shown. (Green V. Warren, 14 Hun, 434.) When service by mail deemed complete. (Vassar v. Camp, 14 Barb. 341.) Attempted service of answer and demand for bill of particulars by depositing in attorney's letter-box without inclosing in envelope and without addressing to anyone not valid service. (Fitzgerald v. Dakin, 101 App. Div. 261.) Not applicable to service of papers upon nonresidents. (Gottleid v. Kurlander, 52 Misc. Rep. 89.) Service must be personal. (Boland v. Sasloski, 56 Misc. Rep. 333; Matter of Smith. 58 id. 493.) 270 CouETS OF Kecoexi. [Rule 37 When time extended. (Borauk v. Blauner, 93 App. Div. 306.) When party has appeared, attorney entitled to notice thereof. (Rice v. Ebele, 55 N. Y. 518.) NATURE OF NOTICE OF MOTION — It cannot be vacated or quashed on an independent motion.] A notice of motion, whether by order to show cause or a notice signed by an attorney, is not a writ or process which can be vacated or quashed upon an independent motion therefor. (Matter of Van Ness, 21 Misc. Rep. 249 [Sup. Ct. Sp. T. 1897].) ' When entry in clerk's minutes is in order. ( Gterrity v. Seeger & Guern- sey Co., 163 N. Y. 119.) Motion defined. (Matter of Jetter, 78 N. Y. 60il.) As to relief under application " for such other and further relief." (Myers v. Rosenback, 58 St. Rep. 513.) Motion to modify judgment of absolute divorce — where made. (Matter of Howorth, 59 App. Div. 393.) Motion for appointment of referee to ascertain damages. (Wilson v. Dreyer, 65 Misc. Rep. 240.) Power of County Court to grant order staying proceedings. (Strick- land V. Henry, 52 How. Prac. 130.) Powar of justice of City Court of . New York. (Margolles v. Ernst, 34 Misc. Rep. 405.) APPLICABLE TO TRIAL TERMS ONLY — The stay of proceedings pre- vented by Rule 37 applies only to Trial Terms, and does not embrace Special Terms.] Oakley v. Cokalete, 20 Misc. Rep. 203 [Sup. Ct. Sp. T. 1897].) ORDER TO SHOW CAUSE — Requisites of order to show cause.] An ob- jection to an order to show cause, that the affidavit upon which the order was granted contained no special reason why a shorter time than eight days was required for the hearing of the motion is not to be regarded as too technical. Such an affidavit should also state the condition of the action and the next term or Circuit at which the motion could be heard. (Proctor v. Soulier, 82 Hun, 353 [1894].) Does not indicate any opinion on ths part of the court.] An order to show cause is, in effect, 'merely a short notice of motion, and is not to be regarded as an indication of ajiy opinion by the court upon the merits of the application. (Thompson v. Erie R. R. Co., 9 Abb. [N. S.] 233 [Sp. T. 1870].) Powers of county judge, considered.] Power of the coimty judge of the county in which the attorney for the applicant resides, to grant an order to show cause, returnable at Special Terjn, why an order appointing a receiver in supplementary proceedings should not be vacated, considered. ( Vandeburgh v. Cxaylord, 7 Wkly. Dig. 136 [Sp. T. 1878]. See Code of Civil Procedure, § 773.) County judge — when he cannot grant it.] MT-ere a county judge granted an order to show cause why an ex parte order previously made by him, should not be modified, and after hearing counsel for both parties granted the modification, held, that the modification was ineffectual, because ordered on a contested motion. (Parmenter v. Roth, 9 Abb. [N. S.] 385 [Ct. of App. 1870].) County judge can grant an order to show cause, only on eight days' notice.] A county judge should not grant an order to show cause which is Eule 37] General Eules of Peactice. 271 r«turnable at a Special Term of the Supreme Court, except on the usual notice of eight days. (Brown v. Supervisors of Herkimer, 3 How. Prac. [N. S.] 241 [Sup. Ct. Sp. T. 1885].) Surrogate's Court — not applicable to.] The requirement that the moving afiadavit shall disclose a reason for granting an order to show cause does not apply to the Surrogate's Court. (In re Harris, 1 Code Proc. R. 162 [Sur. Ct. 1881].) Order of surrogate exempting an estate from transfer tax.] The sur- rogate cannot make an order exempting an estate from payment of the trans- fer tax without notice to the State Comptroller. (Matter of Collins, 104 App. Div. 184.) By whom it may be made]. Such an order to show cause may be made by a judge or Special Term in any part of the State of New York, pro- vided it is made returnalble at a Special Term held in the judicial district embracing the county wherein an issue of fact joined upon the alternative writ of mandamus which may be granted on the return of the order to show cause would be triable {lb.) Order to show cause may be granted by the judge.] An order to show cause in proceedings instituted under section 27 of chapter 687 of the Laws of 1892 may be granted by a justice of the Supreme Court out of court. (Matter of Petition of Argus Co., 138 N. Y. 557 [1893].) Rule applicable only to incidental applications.] It seems, the rule applies to those incidental applications which are made during the progress of an action or special proceeding, not to an application which is the founda- tion of a statutory remedy. (li.) Rule not binding on the court.] This rule, however, simply prescribes a rule of conduct for the guidance of attorneys; it dees not exclude a judge at Special Term, who is engaged at the same time in holding a Circuit from en- tertaining a motion notice for such term, if, in his judgment, the circumstances and the rights and interests involved render it proper to do so. (/&•) Where returnable — by whom made.] An order to show cause, return- able at Special Term, must be granted at Special Term; and one returnable before a judge out of court must be made by the judge before whom it i^ returnable. (Hasbrouck v. Ehrich, 7 Abb. 76 [Sp. T. 1858].: Merritt v. Slocum, 6 How. Prac. 330 [Sp. T. 1851].) These cases were decided prior tti the adoption of the above rule, and of Rule 39 of 1858, and would seem to be in conflict with the last sentence of its second paragraph. Returnable at Special Term held with Circuit.] Such an order may be made returnable at a Special Term, held with a Circuit. The proceeding is not " a contested motion " within the meaning of the Supreme Court Rule ( 38 ) prohibiting the noticing of contested motions or the bringing of them to a hearing at a Special Term held at the same time and place with a Circuit. (/6.) When made — within what time and when returnable.] An order to show cause, prescribing a shorter notice than eight days, or dispensing with it altogether, should only be made in exceptional cases. (Androvette v. Bowne, 4 Abb. 440 [Sp. T. 1857]; S. C, 15 How. Prac. 75.) It must be returnable the first day of the term. (Power v. Village of Athens, 19 Hun, 165 [1879].) 1^72 CouBTS OF Eecoed. [Rule 37 -The length of time is discretionary. {H.) Order returnable after eight days.] An order to show cause may be returnable after more than eight days. (Gross v. Clarke, 1 Code Proc. E. 17 [Gen. T. 1881].) The Eule (37) and Code (§ 780) not applicable to it.] Where an order to show cause is returnable after the expiration of eight days, neither section 780 of the Code nor Rule 37 is applicable to it. (lb.) Order discretionary.] The order to show cause is discretionary with the Special Term, and may be set aside in the discretion of the General Term. (Sixth Ave. R. E. Co. v. Gilbert E. E. E. Co., 71 N. Y. 430 [1877].) Order returnable on Sunday — void.] An order returnable on a Sun- day is void (Arctic Fire Ins Co. v. Hicks, 7 Abb. 204 [Gen. T. 18.58.] Amended nunc pro tunc] Order to show cause, when it may be amended nunc pro tunc. (Suydam v. Belknap, 1 Law Bull. 41 [Sp. T. 1879].) What a sufficient reason for short notice of motion to vacate an order of arrest.] An order to show cause why an order of arrest should not be vacated, which specifies as a ground for short notice that during the period the arrest continued in force, defendant's personal character would suffer, and his business interests would be irreparably impaired, is sufficient. (Shaugh- nessy v. Chase, 23 Wldy. Dig. [Sup. Ct. 1885].) Not proper when defendant is not under arrest.] Where the defend- ant is not in custody, a motion to vacate an order of arrest should not be •made on an order- to show cause. (Garrett v. Humier, 1 Law Bull. 42 [Sp. T. 1879].) Not proper to bring on a motion already noticed for a different place.] After a motion has been noticed, it is irregular for the adverse party to at- tempt, by an order to show cause, to require the moving party to bring on his motion at a different place from that fixed by the notice. Any reason why the miotion should not be heard at the place fixed in the notice, is a matter to be presented to the court at such place. (Thompson v. Erie Ey. Co., 9 Abb. [N. S.] 233 [Sp, T. 1870].) Defective order to show cause — not set aside after an admission of service given.] An order to show cause which does not expressly direct that less than eight days' service shall be sufficient, will not be set aside after the party has given -an admission of due service of the order. (Anonymous, 3 Abb. N. C. 51, note [Sp. T. 1877].) Rehearing on order to show cause before same judge.] A motion for the rehearing of an order directing a judgment-debtor in supplementary pro- ceedings to deliver assets to the receiver of his property theretofore appointed by a county judge is properly granted at a Special Term of the Supreme Court held by the same judge who granted the original order, when the jndge per- ceives that his former ruling was erroneous because of oversight, misappre- hension or mistake. (Matter of Crane, 81 Hun, 96 [1894].) Necessity of resigning order.] The failure of a judge who granted a stay to resign his order after a modification by another judge so as to permit a motion to be made, even if such i-esigning be necessary, is cured by a sub- sequent consent that the motion be heard by the judge who granted the modi- Uule 37] Geneeal Rules of Peactice. 273 fioation. (Whitman v. Jolinson, 10 Misc. Eep. 730 [N. Y. Oom. PI. Gen. T. 1895].) Resettlement of order.] Where an order setting aside a verdict and granting a new trial expresses the decision as rendered a refusal of a motion for resettlement is proper. If there was an error in granting the order or in failing to impose proper terms it can be reviewed .on appeal from the original order. ( Bloomingdale v. Steubig, 10 Misc. Rep. 229 [N. Y. City Ot. Gen. T. 1894].) Granted after expiration of time to appeal.] A motion to resettle an order denying a motion to set aside a verdict cannot be granted after the time to appeal from such order has expired, as the sole effect of so doing would be to extend the time to appeal. (Stierle v. The Union Railway Co., 11 Misc. Rep. 124 [N. Y. Com. PI. Tr. T. 1895].) Inherent power of the court.] The court has inherent power to reset- tle its own order so as to conform it to the actual adjudication. (Robertson V. Hay, 12 Misc. Rep. 7 [N. Y. Com. PI. Gen. T. 1895].) Order to show cause, an order and not an alternative writ of man- damus.] An order granted at a Special Term of the Supreme Court or by a judge at chambers, upon a petition or afladavit presented by a relator, requir- ing the person, officer or board to whom the order is directed, to do the thing asked for by the relator, or to show cause at a Special Term why such order or mandamus should not be made peremptory, takes the place of a notice and is to be deemed merely an application for a mandamus and not in itself an alternative mandamus, and is not subject to the provision of section 2072 of the Code of Civil Procedure, which requires an alternative mandamus to be made returnable twenty days after service thereof. (People ex rel. Crouse V. Supervisors, 70 Hun, 560 [1893].) STAY OF PROCEEDINGS — Successive orders staying more than twenty days — improper.] Successive orders staying proceedings for more than twenty days each are irregular. (Mills v. Thursby, 11 How. Prac. 114 [Sp. T. 1852]; Marvin v. Lewis, 12 Albb. 482 [Sp. T. 1861]. See, als.o, Condon v. Church of St. Augustine, 14 Misc. Eep. 181 [N. Y. Com. PI. 1895].) What is not a stay of proceedings.] An order extending the time to answer is not a stay of proceedings. ( Sisson v. Lawrence, 25 How. Prac. 435 [Sp. T. 1862] ; Washbourne v. Langley, 16 Abb. Prac. 259 [Gen. T. 1863].) Nor is an extension of time to make a case and exceptions. (Thompson V. Blanchard, 1 Code Eep. 105 ['Sp. T. 1849]; Hoff v. Bennett, 2 id. 139 [Ohamb. 1850]; Sails v. Butler, 27 How. Prac. 133 [Gen. T. 1863].) Nor is a motion for a new trial. (Bennett v. Austin, 10 Hun, 451 [1877].) The execution of an undertaking on appeal from an order denying ft motion for a new trial upon the minutes, will not stay proceedings under the judgment, without an order of the court. (Carter v. Hodge, 150 N. Y. 532 [1896].) Section 775 is not applicable to stay for purposes of motion for re- argument. (F. B. N. Co. V. Mackey, 158 N. Y. 683.) Not applicable to order 18 274 CouETs OF Kecoed. [Rule 3T extending time to amend answer. (Condon v. Church of St. Augustine, 14 Misc. Rep. 181.) What is a renewal under section 776. (Harris v. Brown, 93 N. Y. 390.) Application to correct order should be made before justice who heard motion. (Dinkelspeil v. Levy, 12 Hun, 130.) Stay in partition or foreclosure.] An order to show cause made out of court and returnable in less than two days, if it contains a stay of proceed- ings of sale under a judgment in partition or foreclosure, is irregular. (Asinari v. Volkening, 2 Abb. N. C. 454 [Chamb. 1877].) Order granting stay in foreclosure, without requiring security, re- versed.J An order for a stay of a foreclosure suit, gi-anted at the instance of a subsequent mortgagee, pending condemnation proceedings against the property, without requiring adequate security to protect the plaintiff, reversed. (Weekes v. McCormick, 16 App. Div. 432 [1897].) When granted, in order to allow a party to move for a special jury.] A stay of proceedings to enable a party to move for a special jury should not be granted, except at the Trial Term, or by the justice assigned to hold that part of the Trial Term upon whose calendar the cause is placed. (Walsh v. Sun Mut. Ins. Co., 2 Roh. 646 [Sp. T. 1864] ; S. C, 17 Abb. 356.) Nonpayment bf costs of a motion, an absolute stay.] Where the costs of a motion are not paid, the party in default is absolutely stayed from the time of the service of the order. (Seward v. Wilson, 3 Abb. N. C. 50 [Sp. T. 1877]; Lyons v. Murat, 54 How. Prac. 23 [Sp. T. 1877].) No presumption that the costs of a motion are paid.] No presump- tion exists in favor of the party against whomi the costs of a motion are awarded that such costs have been paid. (Ager v. Ager, 1 Law Bui. 2 [Sp. T. 1878].) Stay for nonpayment of costs waived by notice of trial.] The stay for nonpayment of costs is waived by giving notice of trial. (Woodbridge v. Nelson, 1 Law Bull. 27 [Brooklyn- Cir. 1879].) Effect of a stay of proceedings until pasnnent of costs.] Upon a stay of proceedings until payment of costs, the party enjoined has no right to appeal from, an order subsequently made in an action, although the time to appeal therefrom runs from the date of the order. (Newkirk v. Hooker, 11 Misc. 719 [N. Y. City Ct. 1895].) Relief for refusal by Trial Term to strike case from calendar is not by appeal.] Where, on an appeal from an order denying a motion of the defend- ant to vacate an order placing an action on the special calendar of the Supreme Court for the trial of short causes and to strike said action from the special calendar of a Trial Term held by another justice, it appears that judgment haa already been taken by default, the defendant will not be given relief on the direct appeal, but will be left to his remedy of making a motion in the court below. Such a refusal to strike 'the cause from the calendar wag correct within Rule 37. (Knowles v. Lichtenstein, 31 App. Div. 496 [1898].) Stay of trial at Special Term within the rule.] Where, when a cause on the Special Term calendar in Westchester county is called for trial, and the defendant's attorney calls to the attention of the court an order to show Kule 37] Geneeal Etjles of Peactice. 275 cause providing that all iproceedings in the action should be stayed until the motion arising upon it should be heard and determined, which stay was granted by a judge O'ther than the judge who held the Special Term at which the action sihould be tried and was granted within ten days of that Special Term, and the court at Special Term directs that the order be vacated, so far as the stay is concerned, and signs an order to that effect, and the attorney then moves the cause for trial and procures a dismissal of the complaint, he should not ibe adjudged guilty of a contempt of court. The action of the Special Term, when the cause was called for trial, was, in fact, a decision that the stay of proceedings granted by the justice at Chambers was rendered wholly ineffective by the operation of Rule 37. The rule, in its present form, is broad enough literally to include a Special Term for trials. (Oakley v. Cokaletee, 16 App. Div. 65 [1897].) Terms upon granting a stay.] The court has a wide discretion in imposing the terms upon granting a stay. (Waring v. Somborn, 12 Hun, 81 [1877].) Pending an appeal.] A stay granted pending an appeal from a judg- ment does not give the defendant leave to disregard the judgment. (Sixth Ave R. R. Co. v. Gilbert Elevated R. R. Co., 71 N. Y. 430 [r877] ; Genet v. ■D. & H. C. Co., 113 id. 472 [1889].) When it ceases to operate.] A stay of proceedings " rmtil the further order of the court," does not cease to operate until a further order is actually entered. (Aokroyd v. Ackroyd, 3 Daly, 38 [Com. PI. 1869].) When a stay is not terminated by the decision.] 'Where a plaintiff's proceedings had been stayed until a motion was decided and the decision of that motion contained a continuance of the stay, and the plaintiff entered judgment before the service of a copy of the order made upon such decision, held, that the judgment was irregularly entered and should be vacated. (War- ren V. Wendell, 13 Abb. Prac. 187 [Sp. T. 1861].) When a decision terminates the stay, before service of the order.] Under an order to show cause with a stay of proceedings until the decision of the motion, a decision terminates the stay before the service of the order made thereon. (Parmenter v. Roth, 9 Abb. [N. S.] 385 [Ct. App. 1870]. See, also, Cullen V. Uptegrove & Bro., 101 App. Div. 147.) IRREGULARITY — What is not a motion to set aside for irregularity.] Where the notice of motion was " to set aside the judgment for irregularity in this, to wit, in entering up judgment and filing a record thereof, subsequent to a full and complete settlement, and for such further relief," etc., held, not to be a motion to set aside the judgment for irregularity merely, and, there- fore, that the order made upon such motion was appealable. (Marquat v. Mulvy, 9 How. Prac. 460 [Gen. T. 1854].) Failure to file papers not a mere irregularity.] It would seem that failure to file papers besfore publication, where service of the summons is made by publication, is not a mere regularity within the meaning of Rule 37. (Whiton V. The Morning Journal Assn., 23 Misc. Rep. 299 [1898].) When rule as to specifjnng irregularities is inapplicable.] WTiere a motion to vacate an attachment is based upon the ground that the facts stated 276 CouETs OF Eecoed. [Rule 37 afford no basis for an attachment, Rule 37, requiring a notice of motion to specify the irregularity attacked, has no application. (Andrews v. Schofield, 27 App. Div. 90 [1898].) To what case the rule is not applicable.] Where a party by motion seeks relief from a sole of mortgaged premises made by a referee upon the assumption that a regular judgment existed under which the referee was duly appointed, and that he had given the requisite and usual notice of sale and proceeded to offer the premises thereunder, and executed his deed in pursuance lof the sale so made by him, no question as to technical or formal irr^u- larities required by Kule 46 to be specified in a notice of motion arises, and the rule does not apply. (Kellogg v. Howell, 62 Barb. 280 [Sp. T. 1872].) The following irregularities need not be specified: Issuing an execution in violation of a stay of proceedings.] (Jackson V. Smith, 16 Abb. 201 [Gen. T. 1863]; S. C, 525 How. Pra«. 476.) Entering judgment on an answer regarded as frivolous, as if upon a default.] (Decker v. Kitchen, 21 Hun, 332 [1880].) A motion to open a sale on the ground of surprise or mistake.] (Kel- logg V. Howell, 62 Barb. 280 [Sp. T. 1872].) A jurisdictional defect.] (Blake v. Lucy, 6 How. Prac. 108 [Sp. T. 1850].) Judgment entered on an irregular confession — a motion to vacate is jnot a motion for irregularity within the rule.] A motion by a creditor to vacate a judgment by confession entered against his debtor founded on the ground that the statement is insufficient to authorize a judgment to be entered, is not a motion for irregularity within the rule requiring the notice or order to show cause to specify the irregularity complained of. (Winnebrenner -V. Edgerton, 8 Abb. Prac. 419 [Gen. T. 1859].) Rule when applicable.] An order requiring the plaintiff to show cause why an attachment which it has obtained should not be vacated must specify the irregularities of which the defendant complains. (Weehawken Wharf Co. V. Knickerbocker C!oal Co., 22 Misc. Eep. 559 [City Ct. of N. Y. 1898] ; re- versed in 24 id. 683 [Sup. Ct. App. T. 1898], but affirmed on this point.) What are irregularities — what laches fatal.] On a motion to set aside a judgment taken by default for irregularity, because the complaint was not sworn to, and because there was no legal evidence of the service of the summons, which was made upon the managing agent of the defendants, there being no affidavit annexed verifying the signature of the agent who gave an admission of service, held, that these were irregularities which should have been taken advantage of promptly and at first opportunity, and that the delay in moving was fatal to the motion in this respect. Under the facts and circum- stances presented, the plaintiff was allowed to amend mine pro tunc by filing his affidavit of verification of the complaint, and was also allowed to annex an affidavit verifying the signature of the agent of the defendants. (Jones v. U. S. Slate Co., 16 How. Prac. 129 [Sp. T. 1857].) Entry of several judgment on joint indebtedness — amended after one year.] The entry of a several judgment on a joint indebtedness is a mere irregularity, and may be amended after the expiration of a year. ( Judd Lin- seed & Sperm Oil Co. v. Hubbell, 19 Alb. Law J. 337 [Ct. Appeals, 1879].) Eule 37] Getveeal Rules of Peactice. 277 Defects in the summons and copy paper served are irregularities and must be specified.] Defects in a summons and a copy of papers served are mere Lrregiilarities, and if not relied on in the notice of motion cannot be re- garded. The same rule applies in case of an order to show cause, as well as of a notice of motion. (Skinner v. Noyes, 7 Rob. 228 [Sp. T. 1867].) Objection that the return day in an order of arrest has been changed — must be specified.] Where orders of arrest are sought to be vacated on the ground that the return day has been changed, the irregularity should be pointed out in the moving papers. A statement in the defendant's affidavit that at the time of his arrest the orders had no legal effect, for the reason that the return day had expired, is not a sufficient notice of the particular ground relied upon. (Lalor v. Fisher, 2 Rob. 669 [Supr. Ct. Gten. T. 1864].) Objection that an execution was issued after five years without leave.] On a motion to set aside an execution on the ground that it was issued more than five years from the entry of judgment without leave of the court, the ground of the irregularity must be stated in the notice of motion or order to show cause. It is not sufficient if stated in the moving affidavits only. (Mon- trait T. Hutching, 49 How. Prac. 105 [Sp. T. 1875].) Attachment — irregularities in order to show cause.] It would seem that an order requiring the plaintiff to show cause why an attachment should not be vacated must specify the irregularities of which the defendant com- plains. (Weehawken Wharf Co. v. Knickerbocker Coal Co., 22 Misc. Rep. 559 [1898].) Not sufScient to state it in the moving afEdavits only.] On a motion to set aside an execution on the ground that it was issued more than five years from the entry of judgment, without leave of the court, the irregular- ity must be stated in the notice of motion or order to show cause. It is not sufficient if stated in the moving affidavits only. (Montrait v. Hutehins, 49 How. Prac. 105 [Sp. T. 1875] ; German- American Bank v. Dorthy, 39 App. Div. 166 [1899].) Irregularities must be stated in notice of motion.] When a motion is made upon the groimd of irregularity, it is not sufficient to state the alleged irregularity in the moving affidavits alone; it must be stated as well in the notice of motion. (German- American Bank v. Dorthy, 39 App. Div. 166 [1899].) The irregularity must be specified in the notice of motion or order to show cause.] Where the motion is based upon an irregularity, it must be specified in the notice or order. (People v. Kenney, 2 Hun, 346 [1874] ; Gra- ham V. Pinckney, 7 Rob. 147 [Sp. T. 1867]; Lewis v. Graham, 16 Abb. 126 [Gen. T. 1863] ; Barker v. Cook, 40 Barb. 254 [Gen. T. 1863] ; S. C, 25 How. Prac. 190; 16 Abb. 83; Selover v. Forbes, 22 id. 477 [Sp. T. 1859]; Harder v. Harder, 26 Barb. 409 [Sp. T. 1858] ; Perkins v. Mead, 22 How. Prac. 476 [Sp. T. 1857]; Roche v. Ward, 7 id. 416 [Sp. T. 1853] ; Colt v. Lambeer, 2 Code R. 79 [Sp. T. 1849]; Kloh v. New York Fertilizer Co., 86 Hun, 266 [1895].) A failure to serve a certified copy of an attachment is a jurisdictional defect, and not an irregularity which must be specified in the notice of motion. (Weil v. Galium, 75 App. Div. 439.) 278 Courts op Eecoed. [Rule 37 Order not reversed on appeal, because the ground of the motion was not specified in the notice.] An order will not be reversed on appeal be- cause the ground was not sufficiently pointed out in the notice of motion, if it was fully stated in the moving affidavits and distinctly sought to be met by the opposing affidavits, and was actually discussed in the court be- low. (Livermore v. Bainbridge, 14 Abb. [N. S.] 227 [Gen. T. 1873].) Ob- jections cannot bs first raised on appeal. (Miller v. Kent, 10 Wkly. Dig. 361 [Gen. T. 1880].) Appeal — presumption when irregularity is not mentioned.] Where the irregularity is not specified in the notice, and the motion is denied, the court, on appeal, may presume that the motion was denied on the ground of the defect in the notice. (Lewis v. Graham, 16 Abb. 126 [Gen. T. 1863].) Action of court below, not reviewable in Court of Appeals.] The de- termination of the Supreme Court vacating a judgment upon a mere irregu- larity based upon a rule of practice and not upon a positive statute, is not reviewable in the Court of Appeals where the party complaining has not been in any way prejudiced. (Moore v. Shaw, 77 N. Y. 512 [1879].) All objections — to be presented in one motion.] A party complain- ing of any proceeding in a cause must embody all his objections in one motion; the court will not permit him to make separate motions for each objection he may have to make. (Desmond v. Wolf, 1 Code R. 49 [Sp. T. 1848].) Motion not extended beyond the object specified.] A motion cannot be extended to objects not specified in the notice, i. e., a motion to set aside an execution will not be extended to the judgment. (Alexander v. Esten, 1 Cai. 152 [1803].) LACHES — In moving, fatal — motion to set aside for irregularity must be made promptly.] To take advantage of a mere irregularity it is necessary to move at the earliest opportunity, or to show an excuse for not doing so. (Lawrence v. Jones, 15 Abb. Brae. 110 [Gen. T. 1862]; Persse v. Willett, 14 Abb. 119 [Sp. T. 1862]; Jones v. U. S. Slate Co., 16 How. Prac. 129 [Sp. T. 18S7].) What laches in moving to set aside a referee's report is fataL] A delay of about seven months in making a motion to set aside a report of a referee for irregularity, although it was claimed that a substantial right was involved, held, fatal to the motion. (Patterson v. Graves, 11 How. Prac. 91 [G«n. T. 1854.]) Laches of the clerk in entering orders — not to prejudice parties.] It is the clerk's duty to enter orders of the court without any special direction to that effect, and his delay or omission to make actual and speedy entry of orders in the minutes will not be allowed to prejudice the substantial rights of parties. (People v. The Central City Bank, 53 Barb. 412 [Gen. T. 1867].) Objection to irregularity must be made at Special Term.] Objections to the irregularity of papers upon which an order to show cause why a bill of particulars should not be directed, should be addressed to the Special Term; if not, on appeal from the order directing the service of the bill of particulars, it must be held that there has been a waiver. (Wooster v. Bateman, 4 Misc. Rep. 431 [X. Y. Supr. Ct. 1893].) Kule 37] Gedsteeal Rules of Peactice. 279 Formal objections waived, if not taken at once.] All objections to the bringing on of a motion must be made before the grounds of it are entered into; if not, they will be considered as waived. (Roosevelt v. Dean, 3 Caines, 105 [1805]; Low v. Graydon, 14 Abb. Prac. 444 [Chamb. 1862].) PLACE OF MAKING MOTION — Stipulation to allow a motion to be mtade in any county.] Counsel may agree to have a motion in the Supreme Court heard and decided at a Special Term in any county. (Rice v. Ehle, 65 Barb. 185 [Gen. T. 1873]; S. C, 46 How. Prac. 153].) At chambers — when heard only by consent.] A contested motion cannot be heard af a Special Term adjourned to the justice's chambers, except l)y consent. (Matter of Waldley, 29 Hun, 12 [1883].) Motion to set aside a substituted service — where to be made.] A motion to set aside a substituted service of a summons should only be made in the district in which the action is triable, or a county adjoining that. (Mc- Carthy v. McCarthy, 54 How. Pra<;. 97 [Sp. T. 1877].) Motion to consolidate actions in different districts, where made.] A motion to consolidate several actions may be made anywhere in the district containing the county in which any one of the actions is triable. (Percy v. Seward, 6 Abb. 326 [Sp. T. 1858] ; Phillips v. Wlieeler, 16 Abb. [N. S.] -242 [Gen. T. 1874].) Motions in first judicial district in actions triable therein.] All motions affecting the rights of parties in actions triable in the first judicial district must be made therein. (Dupignac v. Van Buskirk, 44 Hun, 45 [1887].) In the first district — application to vacate an attachment.] An application to vacate an attachment or order on notice, if made on the original papers, may be heard in the first district at the term for ex parte business, where it was granted. (Sturz v. Fisher, 15 Misc. Eep. 410 [Supu Ct. Sp. T. 1896]; Byrnes v. Ladew, Id. 413 [Sup. Ct. Sp. T. 1896].) In the first district, a motion in an action triable in another district is improper.] In the first district the Special or General Term of the Su- preme Court cannot hear a motion upon notice in an action triaible in another district. (Harris v. Clark, 10 How. Prac. 415 [Sp. T. 1864]; Canal Bank -V. Harris, 19 Barb. 587 [Gen. T. 1855].) Moving papers need not show that motion is made in the proper county.] It is not necessary that the moving papers should show that the motion is made in the proper county. (Newcombe v. Reed, 14 How. Prac. 100 [Sp. T. 1856].) Motion to vacate an order of arrest.] Section 568 of the Code of Civil Procedure does not abrogate the provisions of section 769 of the Code, requiring motions 'to be made in the judicial district or an adjoining county. (Sutton V. Sabey, 22 Hun, 557 [1880].) Motion to dismiss an appeal, to be made at General Term.] A motion to dismiss an' appeal for irregularity should be made at the General Term. (Barnum v. Seneca Co. Bank, 6 How. Prac. 82 [Sp. T. 1851]. See as to costs of such motion, Williams v. Fitch, 15 Barb. 654 [Gen. T. 1853].) TIME OF ARGUING MOTION — Rights of parties in regard thereto.] There is no analogy between the rules with regard to the trial calendars and 280 Courts of Recoed. [Rule 37 the regulations as to hearing and decision of motions. Parties have a right to bring on a motion when they please, and neither side should be forced on, in violation of a written consent to adjourn. (Lilianthal v. Levy, 4 App. Div. 90 [1896].) RENEWAL OF MOTION — Leave necessary.] A motion denied upon the merits cannot -be renewed without leave. ( Mayor of New York v. Conover, 25 Barb. 514 [Sp. T. 1»57]; S. C, 5 Abb. 252; Cazneau v. Bryant, 6 Duer, 668 [Sp. T. 1857]; S. C, 4 Ablb. 402; Mills v. Thursby, 11 How. Prac. 114 [8p. T. 1852] ; Bellinger v. Martindale, 8 id. 113 [Sp. T. 1853] ; Snyder v. White, 6 id. 321 [Sp. T. 1851]; Bowman v. Sheldon, 5 Sandf. 657 [Sp. T. 1852]; Willet v. Fayerweather, 1 Barb. 73 [Sp. T. 1847] ; Dodd v. Astor, 2 Barb.Ch. 365 [1847] ; Pike v. Power, 1 How. Prac. 164 [Sp. T. 1864]; Harker v. McBride, Id. 108 [Sp. T. 1845] ; DoUfus v. Frosch, 5- Hill, 493 [Sp. T. 1843] ; Mitchell v. Allen, 12 Wend. 290 [1835] ; Allen v. Gibbs, Id. 202 [1834] ; Hoffman v. Livingston, 1 Johns. Ch. 211 [1814]; Dunn v. Meserole, 6 Daly, 434 [Com. PI. Gen. T. 1874]; Seaman v. McEeynolds, 52 Supr. Ct. [J. & S.] 543 [1885]; Floersheim V. Musical Ckjurier Co., 103 App. Div. 388.) When a motion cannot be renewed without leave of the court.] A motion made by the defendant in an action to have the complaint made more definite and certain, and in default of that relief being granted, for a bill of particulars, having been denied without any leave being given to renew it, a second motion was made by him for a bill of particulars in reference to the second cause of action mentioned in the complaint. Held, that the adjudica- tion upon the prior motion was a bar to the making of the second one. (Klump V. Garner, 44 Hun, 515 [1887].) Second motion without leave.] Leave is not necessary for a second motion, when it is not a. renewal, but is founded on new and subsequent facts. (Goddard v. Stiles, 1 N. E. 402 [Court of Appeals, 1885].) When leave to renew, unnecessary.] Leave to renew ex parte appli- cations, made out of court to a " judge or justice " upon affidavits, is not necessary. (Belmont v. Erie R. R. Oo., 52 Barb. 637, 643 [Sp. T. 1869]. See, however. Rule 25, ante.) Leave to renew — discretionary.] Leave to renew a motion is dis- cretionary. When granted. (Hall v. Emmons, 9 Abb. [N. S.] 370 [Ct. of App. 1870] ; Livingston's Petition, 2 id. 2 [Ct. of App. 1866] ; S. C, 34 N. Y. 555.) As to when leave to reargue will be granted.] '(See Boles v. Duff, 56 Barb. 567 [Gen. T. 1870] ; Webb v. Groom, 6 Rob. 532 [Sp. T. 1866] ; Merrill V. Merrill, 11 Abb. [N. S.] 74 [Sp. T. 1871].) Defective papers — the ground of denial of original motion.] Leave to renew a motion granted, when the motion was denied because of defective papers. (Wood v. Kimball, 9 Abb. 419 [Sp. T. 1859]; Bellinger v. Martin- dale, 8 How. Prac. 113 [Sp. T. 1853] ; DoUfus v. Frosch, 5 Hill, 493 [Sp. T. 1843]; Mitchell v. Allen, 12 Wend. 290 [Sp. T. 1835].) Renewal of denied motion — exception to rule.] The general rvile iJ that a motion once denied at a Special Term cannot be renewed or heard by another Special Term, unless by the terms of the order it appeai-s that the motion was denied for some technical reason not affecting the merits, or leave Rule 37] Geneeal, Rules of Peactice. 281 is granted, to renew the motion, but this rule has exceptions, and where new jtnd different facts have arisen a motion may be renewed without consent. (Noonan v. New York, L. E. & W. R. Co., 68 Huji, 387 [1893] ; Shultze v. EodewaM, 1 Abh. N. C. 365 [Sp. T. 1876].) Where leave to renew is granted it should be so stated in the order.] Dollfus v. Frosch, 5 Hill, 493 [1843].) When leave to renew is granted at time of application — when renewal need not be made within a year.] Where a motion to correct a judgment is made within a year after entry of the judgment, and is denied with leave to renew, a renewal of the motion pursuant to such leave cannot be objected to because not made within one year. (Oliver v. French, 41 N. Y. Supp. 106 [Sup. Ct. App. Div. 1896].) On new facts.] A motion should not be denied merely on the ground that a motion of the same nature has already been made and denied, if new facts are presented at the second hearing, such as would be ground for giving leave to renew. (People ex rel. Wilbur v. Eddy, 3 Lans. 80 [Gen. T. 1870] ; Butts V. Burnett, 6 Abb. [N. S.] 302 [Sp. T. 1869] ; Bank v. Moore, 5 Hun, 624; Mills V. Thursby, 11 How. Prac. 114.) On difierent facts.] Where a different state of facts has arisen since the first motion, a new motion, based upon these facts, may be made as a matter of right. (People ex rel. Wilbur v. Eddy, 3 Lans. 80 [Gen. T. 1870] ; Butts V. Burnett, 6 Abb. [N. S.] 302 [Sp. T. 1869] ; Bank v. Moore, 5 Hun, 624; Erie R. R. Co. v. Ramsey, 57 Barb. 449 [Gen. T. 1870].) On newly-discovered facts.] A motion may be made to vacate or modify, founded on matters arising or discovered since the first motion, when no laches is imputable to the moving party. (Cazueau v. Bryant, 6 Duer, 688 [Sp. T. 1857]; S. C, 4 Abb. 402.) Renewal not granted on grounds known when the original motion was made.] A renewal of a motion to open a judgment taken by default cannot be entertained on the ground of a defense which was known to the defendant when the original motion was made. He should have stated at that time all that was necessary to secure his success. [Pattison v. Bacon, 12 Abb. Prac. 142 [Sp. T. 1861]; Lovell v. Martin, Id. 178 [Sp. T. 1861]; Schlemmer v. Myerstein, 19 How. Prac. 412 [Sp. T. 1860] ; Pattison v. Bacon, 12 Abb. 142 [Sp. T. 1861]; S. C, 21 How. Prac. 478.) Second motion improperly granted, pending a decision of first motion.] Pending the decision of a motion to correct answer, opposed because the grounds thereof were not stated in the notice of motion, a new motion for the same relief was made, the notice withdrawing the former motion. Held, that the order granting the second motion could be reversed, since the party had neither paid costs nor obtained leave of the courts to withdraw. (Hoover v. Rochester Printing Co., 2 App. Div. 11 [1896].) Not upon cumulative papers.] A motion can only be renewed upon new grounds, and not upon mere additional or cumulative papers. ( Bascom v. readier, 2 How. Prac. 16 [Sp. T. 1845]; Ray v. Oonraor, 3 Edw. Ch. 479 [1841].) When leave granted, will not be reviewed on appeal.] It is discretion- ary with the court to allow a renewal of a motion on the same or additional 282 CouETS OF Eecoed. [Rule 37 papers, and its decision will not be reviewed on appeal. (Smith v. Spalding, 3 Rob. 615 [Gen. T. 18S4] ; S. C, 30 How. Prac. 339; White v. Monroe, 33 Barb. 650 [Gen. T. 1861]; S. C, 12 Abb. 367; Marvin v. Lewis, Id. 482 [Sp. T. 1861.] ) Attachment vacated on the merits — when another application im- proper.] Where an attachment has been vacated by the court, after opposi- tion, and argument on the merits of the application, another application for the attachment on substantially the same facts, whether before the same or another court, will not be entertained. (Schlemmer v. Myerstein, 19 How. Prac. 412 [Sp. T. I860].) Attachment against national bank — when motion to vacate may be made.] Matter of Keller, 116 App. Div. 58; McBride v. Illinois National Bank, 128 App. Div. 503.) Defendant not to be continually vexed with the same application.] The defendant is not to be continually vexed by the same application, nor are the same or different tribunals to hear and decide upon the same matters more than once. (Schlemmer v. Myerstein, 19 How. Prac. 412 [Sp. T. I860].) Motion denied on preliminary objection — may be renewed on the merits.] A motion denied on a preliminary objection may be renewed on the merits. (Marvin v. Lewis, 12 Abb. 482 [Sp. T. 1861]; Adams v. Bush, 2 id. [N. S.] 112 [Sp. T. 1863].) A motion to open an order and for the relief sought may be made at the same time.] A motion may be properly made to reopen an order and for the relief to which the moving party claims to be entitled, and it rests in the discretion of the Special Term whether or not both brajiches of the motion shall be heard together. (Andrews v. Cross, 17 Abb. N. C. 92 [Sup. Ct. Sp. T. 1885] ; Fowler v. Huber, 7 Rob. 52 [1868] ; Bellinger v. Martindale, 8 How. Prac. 113, 115 [Sp. T. 1853].) Motion to strike out an answer a sham, after the denial of a motion for judgment thereon as frivolous.] (Kreitz v. Frost, 5 Abb. [N. S.] 277 [Sp. T. 1868]. See Fox v. Fox, 24 How. Prac. 385 [Sp. T. 1862]; Frost v. Flint, 2 id. 125 [Sp. T. 1846].) Bail — application to allow surrender as a favor, after denial of, as matter of right.] An application may be made to the court to allow bail to surrender, as matter of favor, upon excuse for delay, after an application for exoneration as matter of right has been denied on the ground that the strict time has passed. (Hall v. Emmons, 9 Abb. [N. S.] 370 [1S70], revers- ing 8 id. 451, 39 How. Prac. 187, 2 Sweeny, 396.) Appeal from original motion — motion to renew not precluded by.] A motion to renew may be granted, although an appeal taken from the original order is still pending. (Belmont v. Erie R. R. Co., 62 Barb. 637 [Sp. T. 1869].) The motion will, however, prevent the hearing of the appeaL] (Peel v. Elliott, 16 How. Prac. 483 [Gen. T. 1858].) First order a bar.] An order unappealed from and imreversed, is conclusive against the right of the moving party to the same relief on a second motion. (Oppenheim v. Lewis, 20 App. Div. 332 [1897].) B.ule 37] General Eules of Peactice. 283 Application to another judge.] When an order has been denied at Special Term without leave to renew motion it cannot be granted by another judge at circuit. (Chamberlain v. Dumville, 50 St. Rep. 356 [Sup. Ct. 1893].) Motion need not be made before the judge who decided the former motion.] (Belmont v. Erie R. R. Co., 52 Barb. 637 [Sp. T. 1S69].) New facts justify — without leave.] New facts justify a renewal, though leave to renew has not been given. (Butts v. Burnett, 6 Abb. [N. S.] 302 [N. Y. Supr. Ct. Sp. T. 1869]; Bank v. Moore, 5 Hun, 642.) Without payment of the costs of a prior motion.] Where a renewal of a motion is made without the payment of costs, if it is mot shown that costs were ever demanded, an objection to the motion should not be considered by the appellate court imless it appears that such objection was made on the hearing below. (Matter of Loftus, 41 St. Rep. 357 [Sup. Ct. 1891].) Papers once served may be referred to on a subsequent motion.] A moving party, who desires to use papers which, on a previous motion, have been recently served on the adverse party, and are still in the latter's posses- sion, is not bound to serve such papers again, but notice of intention to use them is sufficient. (Deutermann v. Pollock, 36 App. Biv. 522 [1899].) TO OBTAIN LEAVE.] Practice as to obtaining leave to renew a motion. (Wentworth v. Wentworth, 51 How. Prac. 289 [Sp. T. 1876]; Fowler v. Huber, 7 Rob. 52 [Gen. T. 1868].) Motion for leave and of renewal at same time.] Motion for leave to renew and such renewal may be made at the same time. ( Fowler v. Huber, 7 Rob. 52 [Gen. T. 1868]; Bolles v. Duflf, 56 Barb. 567 [Gen. T. 1870].) An appeal pending — not a bar.] The fact that an appeal is pending is not a bar to an application to renew a motion. (Belmont v. Erie R. R. Co., m Barb. 637 [Sp. T. 1869]. See Clumpha v. Whiting, 10 Abb. 448 [Sp. T. I860].) Motion to renew prevents hearing of appeal.] A motion for leave to renew will prevemt the hearing of an appeal from the order denying the original motion. (Peel v. Elliott, 16 How. Prac. 483 [Gten. T. 1858] ; Harrison T. Neher, 9 Hun, 127 [1876].) ENTITLING MOTION PAPERS — Where objection is to be taken.] Objec- tion to the entitling of motion papers cannot for the first time be taken on appeal from, the order. (Watts v. Nichols, 19 Wkly. Dig. 165 [Sup. Ct. il884].) Failure to entitle a motion for the appointment of a trustee in a separate proceeding.] Entitling a motion for the appointment of a trustee in place of a deceased trustee, in an action relating to the disposition of the trust fund instead of in a separate proceeding, does not deprive the court of jurisdiction. (Wetmore v. Wetmore, 44 App. Div. 221.) Entitling one order in several actions.] Drawing orders entitled in several actions is exceedingly objectionable where it appears that an order for the examination of witnesses de hene esse was entitled in six actions and directed the examination of a witness simultaneously in all six suits, which order, if it had been construed so as to direct a consolidated examination, would have been reversed, but as it appeared that six separate orders had 284 CouKTS OP Kecoed. [Rule 37 been made, and an order denying a motion to vacate had directed that the depositions be taken separately upon appeal, siKh order should be afSrmed. (August V. Fourth Nat. Bk., 31 St. Rep. 85 [Sup. Ct. 1890].) COSTS.] All proceedings on the part of a party required to pay costs by an order, except to review or vacate the order, are stayed without further direction of the court, until the payment thereof. (Code Civil Procedure, § 779.) Withdrawal of motion — costs — when payable.] Although it is set- tled that a notice of motion cannot be withdrawn or countermanded without payment of costs, yet where a motion embraces two distinct matters, as for leave to add parties defendant, and for an injunction and receiver, the first part may be withdrawn, leaving the motion as to the second part still pending, without payment of costs of the motion. (Walkinshaw v. Perzel, 7 Rob. 606 [Chamb. 1867].) Motion costs not allowed where, before the hearing, the ground of the motion is obviated.] A motion was made to set aside an order for the exami- nation of a party before trial on the ground that a copy of the order and moving /papers had not heen served on the attorney for the party, and before the hearing of a motion such papers were served and no further ground was left for the motion. Held, that the motion costs were improperly imposed on the moving party. (New York, Lake Erie, etc.. Railroad Co. v. Ca-rhart, 3-6 Hud, 288 [1885].) Where costs are inserted in an order entered under a decision not giv- ing them — judge cannot then give costs.] An order entered upon a filed decision without settlement or allowance by the judge, contained an award of costs which was not authorized by the decision. Held, that such allowance of costs was unauthorized and that upon a motion to correct the order in this respect, the judge had no jurisdiction to exercise his original discretion and award costs, but sliould have corrected the order to conform to the decision. (Siegrist v. HoUoway, 7 Civ. Proc. R. 58 [Sup. Ct. 1885].) The party who is to pay costs must seek and tender them to tie other.] (Hoffman v. Treadwell, 5 Paige, 82 [1834]; Pugsley v. Van Allen, 8 Johns. 352 [1811]; Hoadley v. Cuyler, 10 Wend. 593 [1833]; Delehanty v. Hoffman, 1 How. Prac. 7 [Sp. T. 1844].) Nonpayment of, a stay.] Under the Code all proceedings on the part of the party required to pay are stayed till payment, ((^de of Civil Pro- cedure, § 779.) On failure to pay costs.] The proceedings are absolutely stayed by a failure to pay costs. (Tliaull v. Frost, 1 Abb. N. C. 298 [Chamb. 1876] ; Hazard v. Wilson, 3 id. 50 [Sp. T. 1877] ; Lyons v. Murat, 54 How. Pr. 23 [Sp. T. 1877]. See Code of Civil Procedure, § 3247.) A receiver may enforce by execution a judgment between other parties which requires money to be paid to him.] (Geery v. Gleery, 63 N. Y. 252 [1875].) When stay does not deprive court of jurisdiction. (Wessels v. Boettcher, 142 N. Y. 212.) Plaintiff must exhaust other remedies first. (Halsted v. Halsted, 21 App. IMv. 466.) Hule 37] General Rules of Peactice. 285 When execution for costs may be issued. (BeriLheimer v. Hartmayer, 34 Misc. Eep. 346.) After dismissal, costs must be paid before new action can be com- menced. (Ingrosso v. B. & O. R. Co., 105 App. Div. 404.) Failure to pay costs of previous motion, not a bar to motion* to com- pel plaintiff to accept service of delayed amended answer. (Tracy v. Lichten- stadter, 113 App. Div. 754.) As to payment of costs of subsequent action when costs of first action remain unpaid, see Wilner v. Ind. Order Abawos Israel, 122 App. Div. 613; Obermeyer & Liebman v. Adisky, 123 id. 2^72 ; Hirschfeld v. Hassett, 59 Misc. Rep. 154; Roth v. Wallach, Id. 515. CONDITION — When and how complied with.] Where an order is granted on condition, and no particular time is mentioned in the osder, it must be performed within twenty -four hours. (Kellogg v. Johnson, 7 Cow. 420 [1827].) Party must take notice of, and comply with order.] Where a favor is granted to a party, on condition, he must, at his peril, take notice of the ■order, and comply with its terms. ( Willink v. Renwick, 22 Wend. 608 [1840.] ) Motion granted conditionally — failure to perform condition, proper practice on.] Where a motion is granted conditionally upon the failure of the opposing party to do a certain act, if the act is not performed, the proper practice is for the moving party to show, by affidavit, such failure to perform, and thereupon to apply for an ex parte order granting the motion absolutely. (Stewart v. Berge, 4 Daly, 477 [Gen. T. 1873].) What condition may be imposed.] Upon vacating an execution against the person for irregularities therein, the court may compel the defendant to stipulate that he will not sue for the arrest or for false imprisonment under the execution. (Walker v. Isaacs, 36 Hun, 233 [1885].) NOTICE OF ARGUMENT — Proper after settlement of a case.] Immedi- ately after the case or exceptions are settled the respondent may give notice of argument. (Anderson v. Dickie, 26 How. Prac. 199 [N. Y. Supr. Ct. Gen. T. 1863]; Donahue V Hicks, 21 id 438 [Gen T. 1861].) REARGUMENT — Application for reargument must be made before the same justice.] When, upon a motion to reargue a motion, if the judge who originally heard and denied the same does not preside at the Special Term for the hearing of nonenumerated motions, that being the proper place to make such motion, it should be referred to him or postponed until a Special Term is held by him; it should not be denied or dismissed. (Averell v. Barber, 44 St. Rep. 542 [Sup. Ct. 1892].) Motion for rehearing on the ground of misapprehension or inadver- tence before original judge.] 'WTiere a right has been denied to a party under a misapprehension or from inadvertence, a mwtion for a rehearing before the same judge may be made, and may be granted upon the same papers on which the first motion was made. (Matter of Crane, 81 Hun, 96 [1894].) Ordered when the highest court has decided otherwise.] A reargument may be ordered where some obvious mistake has been committed by the court, or where, pending the appeal, the highest appellate court has decided the ques- tion otherwise. (See Taylor v. Grant, 36 N. Y. Supr. Ct. Rep. 259 [Gen. T. 286 ClouETS OP Eecoed. [Rule 37 } 1873] ; Ckjleman v. Livingston, Id. 231 [Gen. T. 1873] ; Butterfield v. Eadde, 40 id. 169 [Gten. T. 18/i4] ; Produce Bank v. Morton, 42 id. 124 [Gen. T. 1877].) If important point overlooked by the court.] A reargument may be granted if an important point waa not considered by the court. (Guidet v. Mayor, 37 N. Y. Supr. Ct. Rep. 124 [Gen. T. 1874] ; Weston v. Ketchum, 39 id. 552 [Gen. T. 1875].) Overlooked by counsel. (Krom v. Levy, 6 T. & C. [Sup. Ct.] 253 [1875]; Guidet v. Mayor, 37 N. Y. Supr. Ct. Rep. 124 [Gen. T. 1874].) Motion for, not stating the facts overlooked.] When the motion papers for a reargument do not specifically state what facts have been over- looked upon the former hearing, the motion should not be granted. (Van Wagen«r v. Royce, 21 N. Y. Supp. 191 [Sup. Ct. 1-892].) Reargument denied, where the question can be settled on a new trial] When a new trial has been ordered by a judgment of the Second Division of the Court of Appeals, a motion for a reargument should not be granted by the Court of Appeals on the ground that a question has been overlooked if, upon the new trial, that question might be settled. (People v. Ballard, 136 N. Y. 639 [1892].) Reargument, heard upon the same case.] Reargument at General Term cannot be heard upon a new and amended case. (Wright v. Terry, 24 Hun, 228 [1881].) Reargument denied, in case of leave to go to Court of Appeals.] A reargument will not be -granted at the General Term of the Court of Common Pleas after leave has been granted to go to the Court of Appeals and the judg- ment has been affirmed by that court. (Jung v. Keuffel, 12 Misc. Rep. 89 [1895].) Reargument, effect of a decision of the Court of Appeals.] It is not only the duty of the com-t to do justice but, also, to satisfy the parties that justice has been done. Where the evidence as to the point in issue is identical on both trials the decision of the Court of Appeals on a former appeal upon that point is obligatory upon the court below. (Myers v. Dean, 10 Misc. Rep. 402 [1894].) Reargument when application is too late.] After remittitur filed in the court below and judgment, entered thereon and paid, the General Term of the Court of Common Pleas has no jurisdiction to entertain a motion for rear- gument of an appeal from the City Court of New York. (Bradley v. Laly, 10 Misc. Rep. 366 [1894].) Order denying reargument at General Term — not reviewable in Court of Appeals.] An order made at General Term denying an application for a reargument in that court is not reviewable in the Court of Appeals. (Fleiseh- mann v. Stern, 90 N. Y. 110 [1882].) — —When a reargument granted. (Banks v. Carter, 7 Daly, 417 [Gen. T. 1878].) That remedy exists by appeal — is ground for refusing a reargument.] The fact that a remedy exists by appeal is a good reason for refusing a rear- gument. (Giles V. Austin, 34 N. Y. Supr. Ct. Rep. 540 [Gen. T. 1872].) Eule 37] Genekal Kules of Peactice. 287 Motion, not appeal, the proper mode to enforce stipulations.] A mo- tion, and not an appeal, is the proper mode of obtaining a rehearing in regard to matters of agreement between the court and counsel. ( Herbert v. Smith, 6 Lans. 495 [Gen. T. 1872].) MOTIONS AND ORDERS — What action wiU not preclude a motion to reopen a default.] The right to reargue a motion to open a default should be determined by the court, and the plaintiff may still be entitled to the right, although he has consented to resettle the original order, received costs therein allowed, and excepted to the sufficiency of the sureties on an undertaking. (Lanahan v. Drew, 44 St. Rep. 769 [N. Y. City Ct. 1892].) Order denying reargument, not appealable.] The General Term of the Supreme Court cannot entertain an appeal from an order denying a motion for the reargument of a motion. The court which hears the original motion can alone judge whether it has failed to consider any of the points raised upon a motion and its determination upon this point is final. (Matter of Grout, 83 Hun, 25 [1894].) Jurisdiction of judge out of court to make order, not restricted to cases where matter may be heard out of court. (Matter of Petition of Argus Co., 138 N. Y. 535.) Granting application for order to show cause is discretionary. ( Andro- veth V. Bowne, 151 How. Prac. 75.) RES AD JUDICATA — Not applicable to special motions.] The principle of res adjudioata does not apply to orders made on special motions. (Easton V. Pickersgill, 8 Wkly. Dig. 37 [Ct. of Appeals, 1878] ; S. C, 75 N. Y. 599. See Matter of Livingston, 34 id. 555 [1866].) A person allowed a hearing on a motion is concluded by the decision.] Where the court allows any person to appear and be heard upon the argument of a motion, in the decision of which he is interested, such hearing is as effectual as though such person had received notice of the motioni, and had been named as a formal party to it; and he is fully concluded by the disposi- tion which the court may make of such -motion. (Jay v. De Groot, 2 Hun, 205 [1874].) JURISDICTION — Question of jurisdiction, not to be decided on a motion to dismiss the complaint.] The question of jurisdiction should not be tested on a motion to dismiss the summons and complaint; it should be presented by answer or demurrer. (Johnson v. Adams Tobacco Co., 14 Him, 89 [1878].) SERVICE BY MAIL — On what hour of the last day to be made.] A service by mail of notice of a.pp©arance and demurrer must be made by a deposit in the mail at such hour on the last day that it will go on that day, or by the first mail on the next day. (Green v. Warren, 14 Hun, 434 [1878].) MOTION TO VACATE — A judge granting an order for substituted ser- vice may entertain a motion to vacate it.] A judge who grants an order for substituted service may entertain a motion to vacate or modify it. ( McCarthy V. McCarthy, 13 Hun, 579 [1878].) Ex parte order vacated on motion at Special Term.] The court at Special Term on notice, has authority to vacate an ex parte order of a judge. , (McMahon v. Brooklyn City Railroad Co., 20 Wkly. Dig. 404 [Sup. Ct. 1884].) 288 OouETS OF Kecoed. [Eule 37 Affidavit must show present condition of action.] Unless the affidavit on a motion to vacate an attachment states the present condition of the case, whether at issue, etc., the motion to vacate should be denied. (Cole v. Smith, 84 App. Div. 600 [1903].) Denied when affidavit insufficient.] Affidavit must show present con- dition of a,ction. (Col© v. Smith, 84 App. Div. 500 [1903].) MODIFICATION — An order can be modified only on motion.] The court cannot modify an order of its own motion without notice to the parties inter- ested. (Simmons v. Simmons, 32 Hun, 551 [1884].) After modification.] The failure of a judge who granted a stay to resign his order after a modification by another judge so as to permit a motion to be made, even if such .resigning be necessary, is cured by a subsequent con- sent that the motion be heard by the judge who granted the modification. (Whitman v. John-son, 10 Misc. Rep. 730 [1894].) ENTRY OF OEDEK, BY WHOM — Eight of unsuccessful party to enter order.] If a party who is entitled to enter an order fails to do so within twenty-four hours after the decision has been made, any party interested may have it drawn up and entered. (Matter of Rhinebeck & Oonn. R. R. Co., 8 Hun, 34 [1876].) Omission to enter order — effect of — who may enter it.] An omis- sion to enter an order does not give the right to agitate the same question by a fresh motion. The unsuccessful party can enter the order when he de- sires to appeal, if the prevailing party omits to do so. (Peet v. Cowenhoven, 14 Abb. Pr. 56 [Chamb. 1&61] ; Hall v. Emmons, 2 Sweeny, 396 [Gen. T. 1870].) See notes under Rule 3. REVIEW — Review of decision of one Special Term by another — im- proper.] A decision of one justice cannot be reviewed at a Special Term, held by another. (Trunstall v. Winton, 31 Him, 222 [1883].) Relief from terms imposed must be sought from the justice imposing them.] An appeal cannot be taken from one Special Term to another; a party must apply to the judge who made the order, or to the General Term when he wishes relief from terms imposed as a condition of a favor granted by a Special Term. (Finelite v. Finelite, 41 St. Rep. 158 [Sup. Ct. 1891].) APPEAL — When it does not prejudice a motion.] The fact that a party appeate from a judgment does not prejudice a pending motion to set it aside. (Clumpha v. Whiting, 10 Abb. 418 [Sp. T. 1860] ; Belmont v. Erie R. R. Co., 52 Barb. 637 [Sp T. 1869]. See Peel v. Elliott, 16 How. Prac. 483 [Gen. T. 1858]; Harrison v. Neher, 9 Hun, 127 [1876].) DEFAULT ON MOTION — Laches in opening.] Laches in delaying for nine months to move to open default on a motion to dismiss, held, a sufficient ground for denying it, though during the intervening time other proceedings towards a similar end were prosecuted. (Matter of Peekamose Fishing Club, 8 App. Div. 617 [1896].) Costs not granted when not demanded in notice.] If the notice of motion, which is granted on the default of the parties served, does not state that costs will be asked for, none can be granted. (Smith v. Fleischman, 17 App. Div. 532 11897].) DIVORCE.] See notes under Rule 72. Rule 38] Genekal Rules of Peactice. 289 KUIE 38. Enumeiated Motions — Non-enumerated Motions, What Are — Contested Mo- tions, When Not Heard at Trial Term. Enumerated motioiis are motions arising on special verdict, issues of law, cases, exceptions, appeals from judgments sustain- ing or overruling demurrers, appeals from judgment or order granting or refusing a new trial in an inferior court, appeals by virtue of sections 1346 and 134-9 of the Code, agreed cases sub- mitted under section 1279 of the Code, and appeals from final orders and decrees of Surrogates' Courts, and matters provided for by sections 2085-2099 and 2138 of the Code. Non-enumerated motions include all other questions submitted to the court, and shall be heard at Special Term except when otherwise directed by law. Contested motions shall not be noticed or brought to a hearing at any Special Term held at the same time and place Avith a Trial Term, except in actions upon the calendar for trial at such term, and in which the hearing of the motion is necessary to the dis- posal of the cause, unless otherwise ordered by the justice holding the court; and except, also, that in counties in which no Special Term distinct from a Trial Term is appointed to be held, motions in actions triable in any such county may be noticed and brought on at the time of holding the Trial and Special Term in the covmty in which such actions are triable. Rule 40 of 1858, amended. Rule 47 of 1871, amended. Rule 47 of 1874, amended. Rule 38 of 1877, amended. Rule 38 of 1880. Rule 38 of 1884. Rule 38 of 1888, amended. Rule 38 of 1896. See notes to Rule 37. CODE OF CIVIL PROCEDURE § 768. Definition of a motion. § 769. Where motions in the Supreme Court are to be heard. § 770. Motions in New York city. § 771. Transfer of a motion from one judge to another. §§ 772, 773. What judges may malce orders out of court. § 776. Second application for an order. § 778. Penalty for a violation of the last section. 19 290 Courts of Eecokd. [Rule 38 § 779. Costs of motion — how collected. See sections of the Code under Rule 37. ENUMERATED MOTIONS.] The following have been held to be enume- rated miotions: An appeal from an order appointing an administrator. (Brockway v. Jew- ett, 16 Barb. 590-593 [Gten. T. 1853].) An appeal from, an order sustaining or overruling a demurrer. (Reynolds v. Freeman, 4 Sandf. 702 [Sp. T. 1852].) A motion for a new trial on a case or bill of exceptions. (Ellsworth v. Gooding, 8 How. Pjac. 1 [Sp. T. 1852] ; Van Sohaick v. Winne, Id. 5-8 [Sp. T. 1853].) A 'motion for a new trial on newly-discovered testimony. (Chandler v. Trayard, 2 Cai. 94 [1804]; S. C, Col. & C. Cases, 358.) A motion to set aside the report of a referee on the merits. (Remsen v. Isaacs, 1 Cai. 22 [1803] ; S. C, Col. & C. Cases, 158.) A motion to confirm referee's report on reference, under interlocutory decree. (Empire B. & M. L. Asso. v. Stevens, 8 Hun, 515 [1876].) An appeal from an order of the County Court granting a new trial on the judge's minutes. (Harper v. Allyn 3 Abb. N. C. 186 [Gen. T. 1867].) Appeal from an order of the New York Court of Common Pleas, denying motion for new trial, taken independently from the judgment. (Kenney v. Sumner, 12 Misc. Rep. 86 [1895].) After an interlocutory judgment, adjudicating certain rights and refer- ring the cause to the referee to state accounts, he made a report, and before the filing of exceptions plaintiff gave notice of motion on the reports, accounts filed, evidence, interlocutory judgment, pleadings, etc., for confirmation of the report and for final judgment. Held, that it was an enumerated motion, under General Rules of Practice 38, and the pap«rs on which it was made should have been served with the notice under Rule 40, and the motion noticed for the first day of the term. (Rogers v. Pearsall, 21 App. Div. 389 [1897]. See, also, Rogers v. Pearsall, 47 N. Y. Supp. 551 [1897].) NON-ENUMERATED MOTIONS.] The following have been held to be non-enumerated motions : A motion for a reference in an action. (Conway v. Hitchins, 9 Barb. 378- 386 [Gen. T. 1850].) A motion to set aside a report of referees on the ground of irregularity, but if grounded on merits also, it is an enumerated motion. (Remsen v. Isaacs, 1 Cai. 22 [1803] ; S. C, Col. & C. Cases, 158.) A motion to set aside a verdict for irregular conduct of jury. (Smith v. Cheetham, 2 Cai. 381 [1805]; S. C, Col. & C. Oases, 425.) A motion to bring on trial by record. (M'Kenzie v. Wilson, 2 Cai. 385 [1805]; S. C, Col. & C. Cases, 428.) A motion for judgment on the pleadings on the ground that an answer raises no issue. (People v. Northern R. R. Co., 42 N. Y. 217 [1870].) Distinction between final order and order with leave to plead over. (Hoff- man V. Barry, 2 Hun, 52 [1874].) Eule 39] General Eules of Peactice. 291 Motion for judgment for frivolousness is the trial of an action.] A motion for judgment on account of tlie frivolousness of tlie demurrer [§ 247, Code of Civil Procedure], is the trial of an issue of law; and a determination upon it is a judgment. (Roberts v. Morrison, 7 How. Prac. 396 [Sp. T. 1S5.3].) CONTESTED MOTIONS — Heard only at regular Special Terms, unless otherwise ordered.] Contested motions will be entertained and heard only at the regular Special Term of the court, unless differently ordered by the judge holding such term. (Mayer v. Apfel, 2 Sweeny, 729 [Gen. T. 1870].) A contested motion cannot be heard at a Special Term adjourned by the justice holding it to his chambers, except by consent. (Matter of Wadley, 29 Hun, 12 [1883].) When a hearing is in the discretion of the court.] Entertaining a motion for restitution and granting an order therefor at a Special Term, held in connection with the Circuit, held, to be in the discretion of tlie court. (Skinner v. Hannan, 81 Hun, 378 [1894].) When properly noticed for a Trial Term.] Where, in a proceeding for the substitution of an attorney in two pending actions, the judge at Special Term refers the matter to a referee to take proof and report what sum is due the attorney sought to be removed and directs the application to stand over until the referee makes his report, it is not improper to notice the motion for the confirmation of the report for a Trial Term at which the same judge who held the Special Term is then sitting. (Hinman v. Devlin, 40 App. Div. 234 [1899].) STJIE 39. Appellate Division Calendar — Notes of Issue, When to be filed — Issue, Date of — Separate Calendar for Non-enumerated Motions — Preferred Cases — Rules in Each Department — Judgment by Default — Twice Passed, Ap- peal Dismissed. At the first term of the Appellate Division of the Supreme Coiirt in each department, and at such other times as the court shall from time to time direct, the clerk shall make up a calendar which shall consist of cases pending and undisposed of, as follows : Notes of issue for the Appellate Division shall be filed eight days before the commencement of the court at which the cause may be noticed. The clerk shall prepare a calendar for the Appellate Division, and, except in the first department, cause the same to be printed for each of the justices holding the court. Appeals shall be placed on the calendar, according to the date of the service of the notice of appeal ; and 'all subsequent enumerated appeals in the same cause shall be put on the calendar as of the date of the first appeal ; and other cases as of the time when the question to be reviewed arose. Appeals in non-enumerated mo- 392 CouETS OF Eecoed. [Eule 39 tions shall also be plaiced upon a separate calendar. Cases entitled to preference shall be placed separately on the calendar. The Appellate Division of each department shall adopt rules regulating the hearing of causes and of calendar practice in such department not inconsistent with the Code of Civil Procedure. Judgment of reversal by default vidll not be allowed. Where the cause is called in its order on the calendar, if the appellant fails to appear and furnish the courts with the papers required, and argue or submit his cause, judgment of affirmance by default will be ordered on motion of the respondent. If the appellant only appears he may either argue or submit the case. If neither party appears, the case will be passed and placed at the foot of the calendar. When any cause shall be twice passed, tbe clerk shall enter an order of course dismissing the appeal or the pro- ceedings, or denying the motion for a new trial — but the court may, upon motion, vacate the order and restore the cause. Rule 41 of 185», amended. Eule 48 of 1871, amended. Rule 48 of 1874. Hute 39 of 1877, amended. Rule 39 of 1880. Rule 39 of 18«4. Rule 39 of 1888, amended. Rule 39 of 1896. CODE OF CIVIL PROCEDURE. §§ 789-793. Causes entitled to preference — when an order is necessary. § 977. Note of issue, contents and filing of. LACHES — Of attorney — delay in sending note of issue to clerk.] If an attorney, without sviflScient excuse, waits until the last day but one for fil- ing notices of argument or issue before sending them to the clerk to file for the calendar, and circumstances then transpire which prevent his sending notice in season for the calendar, he will not be allowed to put it on, what- ever his excuse may be, after that time. (Wilkin v. Pearse, 4 How. Prac. 26 [Ct. of Appeals, 1849].) Neglect to file note of issue — application to supply must be on first day of term.] The omission to file a note of issue may be sxipplied by per- mission of the court, under section 174 of the Code of Procedure, but the application must be made on the first day of the term. (Clinton v. Myers, 43 How. Prac. 95 [Sp. T. 1872].) DEFAULT — Case reinstated — second default — practice on.] After a default has been taken by respondent, and it is opened on condition that the case be restored to the calendar and argued that term, if the appellant neg- lects to comply with the condition, it is proper for the respondent to have the cause restored to the calendar; and a second default taken by him when Rule 39] General Rules of Peactice. 293 the cause is regularly called is not irregular. (Luft v. Graham, 13 Abb. Prac. [N. S.] 175 [N. Y. Com. PI. Sp. T. 1871].) CALENDAR — Control of the court over its calendar.] Subject to the statutory provisions as to preferences, the court has entire control of its calendar. (Maretzek v. Cauldwell, 4 Hob. 660 [Sp. T. 1865] ; Martin v. Hicks, 6 Hun, 74 [1875].) Motion to strike from — contents of papers on motion.] The affidavit, on which the motion is made must show that the party moving has served a notice of argument unless such notice has been served by the adverse party. (Herkimer Co. Bank v. Devereux, 5 Hill, 9 [1843].) Appeal from an order putting a cause on the calendar.] An order placing a cause on the calendar for a certain day is not appealable to the General Term. (Schermerhorn v. Carter, 8 N. Y. Wkly. Dig. 383 [1879].) Case in first department — reversed on appeal — its place on the day calendar.] A case upon the general calendar in the first department, which has been reversed at General Term, may be placed on the day calendar at the circuit on two days' notice, and no new notice of trial is necessary when a new calendar is made up. (Watson v. Phyfe, 44 Hun, 562 [1887].) An amendment of a pleading necessitates a new notice of trial.] In the first department an amendment of the pleadings necessitates the giving and filing of a new notice of trial and new note of issue, and such require- ment cannot be avoided by a stipulation that the amendnnent shall not preju- dice the position of the case on the calendar, although it is assented to by the trial justice. (Keilty v. Traynor, 25 Misc. Rep. 351 [1898]; Zeigler v. Irenkman, 31 App. Div. 305; Leonard v. Faber, Id. 137; Roberts v. Schaf, 76 id. 433.) Note of issue filed before an answer, returned, has been reserved.] A note of issue filed before an unverified answer which has been returned is reserved in a verified form, is not effective to place the case on the calendar. (Pritchard v. Nederland Life Ins. Co., 38 App. Div. 109 [1899].) Service of an amended complaint.] The service of an amended com- plaint takes the case from the general and day calendars as the original issues are destroyed; and the case should be stricken therefrom on motion. (Jfeville V. Butler, 26 Misc. Rep. 203 [1899].) — —Expense of printing calendars. (See Code of Civil Procedure, § 20.) PREFERRED CAUSES — Action by an administratrix for negligent kill- ing.] An action to recover damages for negligence which resulted in the death of plaintifl^'s intestate, brought by an administratrix, may be put on the trial calendar as a preferred case under section 791 of the Code of Civil Procedure. (Hayes v. Consolidated Gas Co., 60 St. Rep. 480 [Ct. of App. 1894].) When party entitled to a preference under Code of Civil Procedure, section 791, subd. 5.] A party is only entitled to a preference under Code of Civil Procedure (§ 791, subd. 5) where in one of the capacities mentioned he is the sole plaintiff or the sole defendant. The right to a preference does not exist where another person is joined with the plaintiff as executor, although that person may be the executor suing in his individual capacity. 294- OouETS OF Eecoed. [Rule 39 (Haux V. Dry Dock Savings Institution, 150 N. Y. 581 [1896]. See, also, Ritchie V. Seaboard National Banit, 12 Misc. Rep. 146 [N. Y. Com. PI. 1895].) When party not entitled to preference tinder Code of Civil Procedure, section 791, subd. 4.] Where one of the several plaintiils in an action dies during its pendency and a personal representative is substituted, he is not entitled to have the case placed upon the calendar of the Court of Appeals as a preferred cause under the provisions of Code of Civil Procedure (§ 791, snbd. 4), as a party is not entitled to a preference under that provision unless he is a sole plaintiff or sole defendant in the action. (Colton v. N. Y. El. E. R. Co., 151 N. Y. 266 [1896].) Eight is mutual.] Right to preference where order of an-est has been granted inures to both parties. (Knox v. Dubroff, 17 App. Div. 290 [1897].) A cause cannot be made a preferred one by stipulation.] Attorneys cannot, by consent, give a cause a preference to which they are not entitled by law, and where tlie last pleadings have not been served, the cause will not be placed on the trial calendar in the first judicial department. (Leonard V. Faber, 31 App. Div. 137 [1898].) What is not a strict compliance with Code of Civil Procedure, section 793, to entitle to a preference.] A motion for a preference on the calendar, made on a statutory ground, that the sole defendant is the committee of a lunatic, where the notice of trial has stated a claim for preference upon that ground, being not addressed to the discretion of the court but made as a matter of right, denied as not being a strict compliance with the require- ments of Code of Civil Procediu-e (§ 793). (Hardy v. Knickerbocker Trust Co., 23 Misc. Rep. 503 [Sup. Ct. Sp. T. 1898].) The preference is available, though the motion to grant it is opposed.] The preference accorded by virtue of Code of Civil Procedure (§ 791, subd. 5) to the action in which an administratrix is sole plaintiff or sole defendant is not personal to the administratrix and may be accorded although she oppose the motion therefor. (Schwartz v. Wolf rath, 24 Misc. Rep. 406 [N. Y. City Ct. 1898].) Orders in preferred cases.] Where the right to a preference depends upon facts which do not appear in the pleadings or other papers upon which the cause is to be tried or heard, the party desiring a preference must pro- cure an order therefor from the court or a judge thereof upon notice to the adverse party, which must be served with or before the notice of trial or argument. (Code of Civil Procedure, § 793.) Order to put a cause on the calendar for preferred causes — when nec- essary.] In those cases in which the pleadings do not show the right to a preference, an order giving the preference should be obtained and served before or with the notice of trial. (Robertson v. Schellhaas, 62 How. Prac. 489 [Sup. Ct. Sp. T. 1881]; City National Bank of Dallas v. National Park Bank, Id. 495 [Sup. Ct. Sp. T. 1882].) Special order to put cause on preferred calendar.] The court may, by special order, advance a cause as preferred and place it upon the calendar for a particular day. (The City of New York v. Shack, 81 App. Div. 575 [1903].) Rule 39] Geneeal Rules of Practice. 295 Issues in a special proceeding, how preferred.] To entitle issues in a special proceeding, which are to be tried by a jury, to be placed upon the special calendar in Part 2 of the New York Trial Term, under Rule 3, it is not necessary to claim a preference in the notice of trial or to serve with such notice a notice of motion for a preference. (People ex rel. Tyng v. Feitner, 39 App. Div. 532 [1899].) A cause need not be placed upon the calendar by the filing of a note of issue before a notice of trial and a notice of motion for ^. preference can be served, although the motion cannot be granted until the cause is on the calendar. (Warden v. Post Steamboat Co., 39 App. Uiv. 543 [1899].) Privilege not regained by amending the complaint.] A plaintiff who has lost his right to a preference by failing to demand it when he first noticed the case for trial cannot, by amending his complaint, regain the lost privilege. (Ziegler v. Trenkman, 26 Misc. Rep. 432 [1899].) Order in which civil actions are entitled to preference among them- selves in the trial or hearing thereof. (See section 791, Code of Civil Pro- cedure. ) Short causes — court not prohibited from establishing a calendar for.] The provisions of the Code as to preferences are not exclusive and do not prohibit courts from establishing a calendar for short causes. (Weiss v. Morrell, 7 Misc. Rep. 539 [N. Y. Com. PI. 1894].) Short causes — court to determine the time a trial will occupy.] It is Avithiu the discretionary power of the court at Special Terra, on a motion to put a cause on the special calendar for short causes, to determine whether there is reason to believe that the trial will not occupy more than one hour. (Guerineau v. Weil, 8 Misc. Rep. 94 [N. Y. Supr. Ct. 1894].) Equity case — not triable at Circuit.] The issues in an equity case were not triable at Circuit in 1893, unless so directed, in the absence of con- sent (Frothingham v. Stillwell, 35 App. Div. 536 [1898].) Consent to a trial at Circuit — from what not implied.] Consent to the trial of issues in an equity case at Circuit cannot be implied from the fact that the party noticed it for trial at such court and consented to its being placed on the calendar, where he moved before trial to strike it from the calendar on the ground that the court had no jurisdiction to try the issues. (Frothingham v. Stillwell, 35 App. Div. 536 [1898].) Police commissioner of New York entitled to preference.] The police commissioner of the city of New York, sued as such, held entitled to pref- erence on calendar. (National Athletic Club v. Bingham, 63 Misc. Rep. 62.) Notice of application to be served with notice of trial.] Notice of application for preference under the Code must be served with the notice of trial. (Cohen v. Thomas, 63 Misc. Rep. 62.) Facts justifying preference to be set forth in moving papers.] Appli- cation for preference rmder the provisions of section 791, Code Civil Proced- ure, is in discretion of court, hence the facts justifying preference are to be set forth in the moving papers. (Peck v. Maher, 116 N. Y. Supp. 574. See, also, Wihier v. Mink Restaurant Co., 61 Misc. Rep. 73.) What determines date of issue.] Time when last pleading "is served determines date of issue. (Van Norden Trust Co. v. Murphy, 125 App. Div. 296 Courts of Kecobd. [Rule 40 When notice may be served.] Notice of application for preference may be served at any time within which cause could be noticed for trial. (Thomp- son V. Post & McCord, 125 App. Div. 397.) Action for causing death of infant not entitled to preference.] In an action for damages by causing the death of an infant, held, not to entitle party to preference under section 791, Code of Civil Procedure. (Gehrt v. Deane, 109 N. Y. Supp. 679. See, also, Ortner v. N. Y. City Ry. Co., 54 Misc. Rep. 83.) Extreme age of plaintiff.] Extreme age of plaintiff and the likelihood that he might not live until cause reached, held sufficient to entitle to preference. (Hickman v. Schimper & Co., 121 App. Div. 257.) Failure to make motion operates as a waiver.] Failure to make motion for preference at the commencement of term for which notice of trial served held to operate as a waiver of the right. (Myerson v. Levy, 117 App. Div. 475; Gegan v. Union Trust Co., 120 id. 382.) Action for a separation held not entitled to preference. (Seligman v. Seligman, 52 Misc. Rep. 9.) THIRD DEPARTMENT RULES — Rule 15 will be strictly enforced.] The court has full power to protect every party against a wilful disobedience of this rule; and upon a failure to serve a brief by appellant within the time specified, respondent's motion to put the case over the term was granted. (Matter of Haase, 101 App. Div. 336.) RULE 40. Enumerated Motions — Papers to be Furnished On — Neglect to Furnish Papers — Cause May be Struck from Calendar — Papers, by Whom Fur- nished — Points to Contain a Statement of Facts. The papers to be furnished on enumerated motions at Special Term shall be a copy of the pleadings, when the question arises on the pleadings, or any part thereof, a copy of the special verdict, return or other papers on which the question arises. The party whose duty it is to furnish the papers shall serve a copy on the opposite party, except upon the trial of issues of law, at least five days before the time for which the matter may be noticed for argument. If the party whose duty it is to furnish the papers shall neglect to do so, the opposite party shall be entitled to move, on affidavit and on four days' notice of motion, that the cause be struck from the calendar (whichever party may have noticed it for argument), and that judgment be rendered in his favor. The papers shall be furnished by the plaintiff when the question arises on special verdict, and by the party demurring on the trial of issues of law, and in all other cases by the party making the Euie 41] General Edles of Practice. 297 motion. Each party shall prefix to his points a concise statement of the facts of the case, with reference to the folios; and if such statement is not furnished, no discussion of the facts by the party omitting such statement will be permitted. Rule 42 of 1858, amended. Rule 49 of 1871, amended. Rule 49 of 1874. Rule 40 of 1877, amended. Rule 40 of 1880. Rule 40 of 1884. Rule 40 of 1888, amended. Rule 40 of 1896, amended. CODE OF CIVIL PROCEDURE. § 1353. Upon what papers an appeal should be heard. SERVICE OF PAPERS — Neglect — notice must be given of a motion to strike from the calendar.] Where a party intends to object to the argument of a case, demurrer or special verdict because papers have not been served, he must give notice of an application to strike the cause from the calendar, as the objection will not be heard when the cause is called for argument. (Delamater v. Smith, 16 Johns. 2 [1819]; Townsend v. Wheeler, 4 Wend. 196 [1830]; 10 id. 537, note.) Failure to serve papers.] Plaintiff noticed an enumerated motion for the second day of the term, and also failed to serve a copy of the papers on which the motion was founded. Defendant, however, obtained the stenog- rapher's minutes at his own e.xpense. Held, that the motion was fatally irregular and should have been stricken from the calendar under General Rule 40. (Rogers v. Pearsall, 47 N. Y. Supp. 551 [1897].) On motion to confirm referee's report, the supporting papers should be served with the notice. (Rogers v. Pearsall, 21 App. Div. 389 [1897].) DEMURRER — Papers to be furnished by a party demurring, to the court only.] The party demui-ring is not required to serve on the opposite party any copy of the pleadings or other papers when the question to be decided arises on demurrer. He is only required to furnish them to the court. (Gait V. Finch, 24 How. Pra«. 193-196 [Gen. T. 1862].) RULE 41. Papers to be Furnished, on Appeal, by Appellant — Printed Copies of Case and Points — Appeals from Non-enumerated Motions — Delegation of Powers. In all cases to be heard in the Appellate Division, except ap- peals from non-enumerated motions, the papers shall be furnished by the appellant or the moving party, and in cases agreed upon, mider section 12Y9 of the Code, by the plaintiff. The party whose duty it is to furnish the papers shall cause a printed copy of the requisite papers to be filed in the office of the clerk of the Appellate Division within twenty days after an appeal has been taken, or the order made for the hearing of a cause therein, or 298 CouETS OF Record. [Eule 41 the agreed case filed in the clerk's office pursuant to section 1279 of the Code of Civil Procedure; but if it shall be necessary to make a case or case and exceptions after the appeal has been taken or the order made for the hearing in the Appellate Division, the printed papers, including the case as settled and signed by the judge before whom the case was tried, shall be filed within twenty days after the settlement of the case ; and the party whose duty it is to furnish the papers shall serve within said twenty days upon his adversary three printed copies of such papers. Such papers shall consist of a notice of appeal, if an appeal has been taken; a copy of the judgment-roll, or the decree in the court below, and the i>apers upon which it was entered; if no judgment was entered, the pleadings, minutes of trial, and the order sending the case to the Appellate Division or the order appealed from, or the papers required by section 1280 of the Code of Civil Procedure. To these papers shall be attached the case or case and exceptions if it is to be used in the Appellate Division. All the foregoing papers shall be certified by the proper clerk, or be stipulated by the parties to be true copies of the original. There shall be prefixed to these papers a statement shovsdng the time of the beginning of the action or special pro- ceeding, and of the service of the respective pleadings ; the names of the original parties in full ; and any change in the parties, if such has taken place. There shall be added to them the opinion of the court below, or an afiidavit that no opinion was given, or, if given, that a copy could not be procured. The foregoing papers shall constitute the record in the Appellate Division. If the papers shall not be filed and served as herein provided by the party whose duty it is to do so, his opponent may move the court on three days' notice, on any motion day, for an order dis- missing the appeal, or for a judgment in his favor, as the case may be. The papers in all appeals from non-enumerated motions shall consist of printed copies of the papers which were used in the court below, and are specified in the order, certified by the proper clerk, or stipulated by the parties to be true copies of the original, and of the whole thereof. There shall be added to them the opinion of the court below, or an affidavit that no opinion was given, or, if given, that a copy could not be procured. Eule 41] Geneeal Eules of Practice. 299 They shall be filed with the clerk within fifteen days after the appeal is taken and at the same time the appellant shall serve upon his adversary three printed copies thereof. If the appellant fails to file and serve the papers as aforesaid, the respondent may move, on any motion day, upon three days' notice, to dismiss the appeal. If the judge from whose order the appeal is taken orders that it shall not be necessary to insert in the printed papers upon which the appeal is to be taken such exhibits or other voluminous documents as are not necessary for a consideration of the ques- tions raised by appeal, the clerk shall then certify that the printed papers are true copies of the originals and of the whole thereof specified in the order except those omittted by order of the court. Rule 43 of 1868, amended. Rule 50 of 1871, amended. Rule 50 of 1874, amended. Rule 41 of 1877, amended. Rule 41 of 1880, amended. Rule 41 of 1884. Rule 41 of 1883, amended. Rule 41 of 1896, amended. Rule 41 as amended, 1910. CODE OF CIVIL PROCEDURE. § 1353. Upon what papers an appeal will be heard. § 1361. Appeal from a determination in a special proceeding — how far reg- ulated by the General Rules of Practice. PRINTING PAPERS — Dispensed with only on order of the court] Print- ing the necessary papers on which the appeal is to be heard is mot for the benefit of counsel or parties, but of the court, and is not to be dispensed with, except by its order. (Wheeler v. Falconer, 7 Robt. 45 [Gen. T. 1867].) Right of Special Term to dispense with the printing of papers on an appeal.] There is no provision of the Code or the rules which authorizes the Special Term to direct that papers submitted upon a motion heard at Special Term, and which have been duly filed and are recited in the order entered upon such motion, need not be printed in the papers to be used- on the argument of an appeal from such order; the power to make such direc- tion can be exercised only upon the theory that some of the papers which have been so submitted, filed and recited were not actually used, or that they were not considered by the court in deciding the motion. (Manhattan Railway Co. v. Taber, 7 Misc. Rep. 347 [Sup. Ct. 1894].) To be sparingly exercised.] Such power must be sparingly exercised, and only in cases where there can be no reasonable difference of opinion as to the materiality of the papers in question. (It.) Papers to be printed on an appsal from an order of the County Court granting a new trial.] An appeal from an order of the County Court grant- ing a new trial on the judge's minutes, is an enumerated motion and must be placed on the calendar, and brought on upon printed papers. (Harper v. Allyn, 3 Abb. [N. S.] 186 [Gen. T. 1867].) 300 CoTJETS OF Eecoed. [Rule 41 What papers are required at General Term.] The General Term should ■have before it all the papers upon which the order appealed from is based. (Eldredge v. Strenz, 39 N. Y. Supr. Ct. 295 [Gten. T. 1875]; Smith v. Chap- man, 33 How. Prac. 308 [Gen. T. 1867].) Contents of record on appeals from orders.] On appeals to the Appel- late Division from orders, all the papers used in the court below mus't he contained in the record, and all such papers must be referred to in the order disposing of the motion : otherwise an appeal from an order will not be entertained (WTiipple v. Eipson, 20 App. Div. 70 [1898].) — » — The opinion below.] The opinion of the court below cannot be referred to to show the groimds of the decision, as it forms no part of the record. (Randall v. New York El. R. R. Co., 149 N. Y. 211 [1896].) Two independent cases cannot be incorporated in one appeal book.] Two ■ independent cases should not he incorporated in one appeal book ; the record on each Sippeal should be printed by itself so that independent judg- ment-rolls may be made Tip. each embracing only the papers applicable to OTie case. (Geneva & Waterloo Ey. Co. v. N. Y. C. & H. R. R. E. Co., 24 App. Biv. 335 [1897].) Appeal book showing no decision of the issues of law.] Where the appeal book presented by the defendant upon appeal from a "judgment ob- tained by the plaintiff at a trial of the issues of fact does not show that any decision in writing of the issues of law raised by the demurrer has been filed, the judgment is final against the defendant. (McNulty v. Urban, 1 Misc. Rep. 42 [Brooklyn City Ct. 1892].) Omitting opinion — argument postponed to allow it to be presented.] Warren v. Warren, 22 How. Prac. 142 [Gen. T. 1»61].) Argument on the stenographer's minutes, denied.] In an action for divorce the court denied a motion to allow argument on the minutes of the stenographer, and to dispense with the printing of the case on appeal, it appearing that the parties were living together, and that a reconciliation might thus be effected. (Wanzor v. Wanzor, 25 St. Rep. 753 [N. Y. Com. PI. 188'8].) The expense of printing is a necessary disbursement.] The rule requir- ing papers, which are to be used at General Term, to be printed, renders the expense of printing a necessary disbursement; the party is confined to that mode of compensation, and it is error to charge for printed copies of the case and ,points by the folio. (Brockway v. Jewett, 16 Barb. 590 [Gen. T. 1853].) Cost of printing what papers, is a taxable disbursement.] The cost of printing papers not required to be printed by the rules of the court cannot be taxed as a disbvirsement. (Veeder v. Mudgett, 27 Hun, 519 [1882].) Expense of preparing the case in a criminal cause.] When the expense of preparing the case in a criminal cause will be charged upon the county. (People V. Jones, 34 Hun, 620 [1885].) Error in printed case — when disregarded.] An error in the printed case will be disregarded unless corrected by proper application to the court a.t Special Term, before the case is brought on for argument. (Hi). No additional allowance nnless there hais been a txiaL] It would aeem thaft where, in a partition suit, which is equitable in natvire, the issues joined haiTB been sent to a Trial Term for a jury trial, wlicre the trial justice dis- misses the complaint so that there has been no trial, the suoeeasful :party is not entitled to an extra allowance. (Toeh v. Toch, 9 App> Div. 501 [1896].) Eule 415]' Genekal Rules of Pbactiob. 309 WHEN GRAUTED — Not in special proceedings.] The provision for an extra allowance applies to actions only, and niot to special proceedingB. '(^ens- selaer & Saratoga 'R. R. Co. v. Davis, 55 N. Y. 14,5 [1873] ; Matter of Bolden, 126 id. 589 [1891]; German Savings Bank -v. Sharer, 25 Hun, 409 [18811; Matter of Simpson, 20 id. 459 ti882].) See, however, €ode of Civil Procedure, In special proceedings on a motion for favor.] The statutes author- izing extra allowance do not 'apply to special proceedings, andi such allowance cannot he given under an order giving costs; in such a case the limitation to those for similar services, etc., in actions controls, yet that Testriction does not apply to a onotion foi- favor, and the court in granting such a motion is not limited to taxable costs and disbursements as a condition. (Kew York, West Shore & Buffalo Ey. Co. v. Thome, 1 How. Prae. [N. S.] 190 [Sup. Ct. Gen. T. 1884].) See, however, Code of Civil Procedure, § 3253. Not granted when plaintiff was guilty of misconduct nor against an insolvent savings bank.] An additional allowance should not be granted against a defendant which has been misled by plaintiff's conduct into inter- posing its defense, nor against a savings bank where its assets are not suffi- cient to pay its depositors in full. (Kelly v. Chenango Valley Sav. Bank, 45 N. Y. Supp. 658.) When granted to codefendants.] Where, in an action brought by trus- tees to enjoin the operation of an elevated railroad and/ for damages to the trust property, the beneficiaries, upon their refusal to joiir in the action, have been made parties defendant, the court may grant them an extra alloTyance as against the xailroad company. (Roberts v. N. Y. Elevated R. R. Co., 12 Misc. Rep. 345 '[1895].) But one allowance, though there be several trials.] Only one extra allowance can be recovered, although the ease may liave been tried several times. (Flynn v. Equitable Life Assn. Society, 18 Him, 212 [1879].) Swonfl trial] When made on a second trial, although not -difficult. (Howell v. Van Siclen, 4 A¥b. i^. C. 1 [Court of Appeals, 18771.) Actions in which the court has power to grant an extra allowance.] In all actions which are difficult or extraordinary, when a defense has been interposed and a trial had. (C^oates v. Goddard, 2 J. & S. 118 ISupr. Ct. 1871].) Case both difficult and extraordinary.] The case must be both difficult and extraordinary to authorize .an extra allowance. It mnst involve something unusual, and be such as to require more than ordinary labor and previous preparation by counsel. (Dimean v. De Witt, 7 Hun, 184 [1876]; Swan v. Stiles, 94 App. Div. 117.) Proof of value necessary.] In an action brought by an abutting owner against a corpoTation operating a railroad on a street withont authority, the value of the subject-matter must be shown in order to afford a basis for an additional allowance to plaintiff. (Black v. Brooklyn Heights R. R. Co., 32 App. Div. 468 [1898].) Additional allowance, affected by the amount involved.] In determin- ing whether or not an additional allowance should be granted, the amount 310 CouETs 01? Recokd. [Rule 45 involved in the action may be considered, as the fact that a large amount de- pends upon its decision naturally increases the anxiety and responsibility of the attorney and justifies the employment of eminent counsel. (Gooding v. Brown, No. 2, 35 Hun, 153 [1885].) Povrer of court.] The povirer to grant additional allowance is not 'afl'ected by stipulation of settlement two days before trial. (People v. Bost- man, 180 N. Y. 1.) Offer, after a defense is interposed, to allow judgment, and acceptance thereof.] The court has power, notwithstanding such offer and acceptance, to grant an extra allowance. (CJoates v. Ooddard, 2 J. & S. 118 [Supr. Ct. 1871].) When imposed, on application to discontinue.] It is proper in difficult and extraordinary cases to require payment of an allowance, in addition to costs, as a condition of leave to discontinue. (Robbins v. Gould, 1 Abb. X. C. 133 [Sup. Ct. 1876]; Moulton v. Beecher, Id. 245.) Basis of.] Can be granted only on a money basis upon which a per- centage can be calculated. (Coates v. Goddard, 2 J. & S. 118 [Supr. Ct. 1871].) Trade mark — allowance based thereon.] In a difficult and extraordi- nary action brought to restrain the infringement of a trade-mark, of which the value and the profits therefrom are proved, an extra allowance is proper. (Waterman v. Shipman, 47 N. Y. St. Rep. 418 [Sup. Ct. Gen. T. 1892].) Basis furnished by evidence at the trial.] In an action against an ele- vated railroad company plaintiff demanded damages of $250,000 — and upon the trial the value of his property was proved to be $125,000 — which was the sum named in his claim of damage. Held, that while the demand in the com- plaint being denied in the answer afforded no basis for computing an addi- tional allowance, the evidence at the trial did so. (Israel v. Metropolitan R. R. Co., 10 Misc. Rep. 722 [i895].) Plaintiff's claim may be the basis for an extra allowance to the defend- ant.] Where in an action for the dissolution of a partnership and an accounting, no specific sum is demanded, but the plaintiff claims to have ad- vanced $9,000, no part of which has been paid by the defendant, who has given his notes therefor as for advances made in his behalf, such amount affords a basis for an additional allowance to the successful defendant- (Proctor V. Soulier, 8 App. Div. 69 [1896].) Basis shown subsequently by afSdavit.] The basis for an extra allow- ance is the value of the subject-matter involved, and where no proof of this is made at the trial of an equity action it may be shown afterward by affi- davit. (Hayden v. Matthews, 4 App. Div. 338 [1896].) Additional allowance refused where no damages were demanded in the complaint, there being no basis therefor.] Where, in an action brought to obtain an injunction against the diverting or polluting of the water of a stream, the complaint alleges that the defendant so operated his salt works as to justify the relief prayed for, but no damages are demanded, the defend- ."int is not, upon a dismissal of the complaint, entitled to an extra allowance upon the basis of the difference between the value of his salt works as they Eule ^S] General Eules 01- Practice. 311 were, and their value if the injunction were granted, which would depreciate nine-tenths, under a claim thait this was the " subject-matter involved," within the Code of Civil Procedure, section 3253; as such, this damage would be incidental merely, and there is no basis upon which to estimate an allowance. (Godley v. Kerr Salt Co., 3 App. Div. 17 [1896]. See, also, Meyer Rubber Co. V. Lester Shoe Co., 92 Hun, 52 [1895].) Short cause, no basis for extra allowance.] An ordinary action tried as a short cause within an hour, the record of which discloses nothing diffi- cult or extraordinary, affords no basis for an extra allowance. (Gillespy v. Bilbrough, 15 App. Div. 212 [1897].) Increase of extra allowance made on uncertain evidence set aside.] An increased extra allowance granted in an action to charge certain lands with an annuity is not justified when based upon the valuation of the annuity as derived from uncertain evidence of the annuitant's age. (Arthur v. Dalton, 14 App. Div. 115 [1897].) Basis in an action against a municipal corporation relative to a right of way.] \^Tiere a final judgment is entered restraining a city from laying out a street across land of a railroad company already condemned for its use, the basis for an additional allowance is simply the expense of a suitable crossing at grade, and not the incidental damage likely to he occasioned. (Rochester & Honeoye Valley R. R. Co. v. City of Rochester, 17 App. Div. 257 [1897].) Where a lease is not a basis therefor.] Where the relief sought in an action is the possession of premises under a lease of which plaintiff is assignee, and of the value of which no proof is adduced, there exists no basis for the computation of an extra allowance to .plaintiff. (H. Koehler & Co. v. Brady, 22 App. Div. 624 [1897].) Basis where recovery is had against one defendant only.] In an action on a Uoyds policy of insurance, which provides that suit may be brought against one indemnitor only, the others being bound by the judgment therein, the plaintiff, upon recovering against one indemnitor, is only entitled to a extra allowance based upon the proportion for which he is liable. (Laird v. Littlefield, 34 App. Div. 43 [1898].) Trade-mark, not in itself a basis for an allowance.] A trade-mark has not in itself, as distinct from the value of the article of which it is the trade- mark, any money value which can constitute a money basis on which to com- pute an extra allowance. (Coates v. Goddard, 2 J. & S. 118 [Supr. Ct. 1871].) Trade-mark — value of subject-matter must be shown.] An extra allowance granted in an action to restrain the use of plaintiff's trade-mark will be set aside by the General Term where there is no allegation in the complaint, nor any testimony in the record, as to the value of the subject- matter involved. (De Long v. De Long Hook & Eye Co., 89 Hun, 399 [1895].) Where the value of the subject-matter is not shown, and there is no evidence or admission from which the court can compute it, no additiouiil allowance can be granted. (Smallwood v. Schwietering, 10 Misc. Rep. 103 [1894].) 312 CotTETs OF Eecoed. [Rule 45 In an equity action extra allowance should be a reasonable counsel fee.] While in an eqiiity action for an injunction and an accounting for the infringement of a trade-mark the basis for computing an extra allowance is not the amount of the damages recovered merely, but the value of the trade- mark, the allowance should, under the Code of Civil Procedure, section 3253, be what the ooTirt may deem a reasonable counsel fee in the cause. (Perkins V. Heert, 14 Misc. Rep. 425 [1895].) To compel the lowering of a dam.] In an action brought to compel a party to lower a dam which sets back water upon the lands of the plainif: and to recover damages, an additional allowance may be computed upon the damages recovered, but not upon the value of the land. (Rothery v. N. Y. Rubber Co., 90 N. Y. 30 [1882].) Action by a taxpayer.] Extra allowance against a taxpayer sustained. (Hart V. Mayor, etc., of N. Y., 16 App. Div. 227 [1897] ; Gordon v. Strong, 15 id.. 519 [1897].) Allowance upon a corporate franchise.] How an additional allowance is to be computed upon a corporate franchise. ( Conaughty v. Saratoga County Bank, 28 Hun, 373 [1882].) Action by the Attorney-General to annul a charter.] In an action brought by the Attorney-General to annul the charter of a savings and loan association in which the complaint was dismissed, the 'Special Term is justified in granting an extra allowance of $500 upon affidavits to the effect that the value of the franchise in question was at least $20,000 ; that the case was diiEcult and extraordinary, andl giving a detailed statement of the time spent in oQinducting the defense. (People v. Rochester Dime Savings & Loan Assn., 7 App. Div. 350 [189&].) Extra allowance improper in special proceeding.] An order for an extra allowance in a proceeding to acquire the franchises and property of a water company, instituted, not under the General Condemnation Law, but pur- suant to Laws of 1892, chapter 481, cannot be sustained under Code of Civil Procedure, section 3372, nor under section 3240, which authorizes costs in special proceedings. (Matter of City of Brooklyn, 88 Hun, 176 [189.3].) Basis for extra allowance to a successful defendant in an action for an injunction.] In an action for an injunction against laying a private subway for electrical apparatus, proof that the annual rental for the use by the de- fendant of a subway constructed by the plaintiff pursuant to statute would be $700 per mile, and that the value of the subway to be constructed would be $60,000, justiiies the granting of an extra allowance to the defendant succeed- ing in the action. (Empire City Subway Co. v. Broadway & Seventh Ave. R. R. Co., 87 Hun, 279 [1895].) In an action to dissolve a corporation.] How computed in an action to dissolve a corporation. (Peoule v. Rockaway Beach Improvement Co., 28 Hun, 356 [1882]].) Action to recover the interests of a corporation in transferred prop- erty.] Where stockholders of a corporation seek to recover the value of its interest in certain boats transferred to 'one of the defendants which the latter has allowed to become forfeited by the omission of a payment under a con- Eule ^S] GENER,i.L Rules of PitACTicE. 313 ditional contract of purchase, and demand such an amount as will represent the earnings of the boats, stated in the complaint and an affidavit as about $500,000, a basis for aji allowance to the defendants succeeding in the action is afforded under Code of Civil Procedure, section 3253. (Hart v. Ogdensburg & Lake Champlain R. R. Co., 89 Hun, 316 [1895].) Allowance in an action on notes.] Where, in an action on promissory notes, the full face value is demanded on the assumption that they are all business paper, and one note is an accommodation note on which the whole amount is mot due, the cause being otherwise a suitable one, and there being no offer of judgment by the defendant, an additional allowance to plaintiff is proper. (State Bank of Lock Haven v. Smith, 85 Hun, 200 [1895].) Partition suit — allowance in.] Act amending section 3253, Code of Civil Procedure, in relation to extra allowances, by transferring actions for partition from the first to the second subdivision. (Laws of 1899, chap. 299.) An extra allowance in partition.] In an action for partition of lands, part of a residuary estate, the devise of which was sustained against plain- tiff's contention, an additional allowance of $150 was granted and sustained upon appeal. (Preston v. Howk, 3 App. Div. 43 [1890].) Allowance in a partition suit when a defense has not been interposed.] An answer in partition which demands relief against a codefendant, but does not tend to defeat the plaintiff's claim, does not present a case " where a defense has been interposed," within section 3253 of the Code, as amended in 1898, and in such case the aggregate allowances cannot exceed $200. (Defen- dorf V. Defendorf, 2G Misc. Rep. 677 [1899].) Only the pecuniary importance of the litigation considered.] To jus- tify an extra allowance, the importance of the litigation is only to be con- sidered so far as it has a pecuniary basis. If no money value can be placed upon the subject-matter involved, au allowance is not authorized. (Con- aughty V. Saratoga County Bank, 92 N. Y. 401 [1883]; People v. Albany & S. R. R. Co., 5 Laus. 25 [Gen. T. 1871] ; Weaver v. Ely, 83 N. Y. 89 [1880].) Action for the reformation of an instrument.] An additional allow- ance cannot be granted in an action for the reformation of an instrument merely. (Heert v. C'niger, 14 Misc. Rep. 608 [189-5].) A trial not necessary to the granting of.] A trial is not a necessary element for the granting of an extra allowance when a defense has been inter- posed in a difficult and extraordinary case; nor is it necessary that a judg- ment should be actually entered. (Coffin v. Coke, 4 Hun, 618 [1875].) Not granted on a leasehold nor where no defense has been interposed.] In an action to foreclose a mortgage upon a leasehold, an additional allowance cannot be granted under Code Civ. Prov., § 3253, subd. 1, nor can an allow- ance be granted under subdivision 2 where no defense has been interposed. (Barnes v. Meyer, 41 N. Y. Supp. 210 [1896].) Allowance where the subject-matter is a two years' lease.] What must be shown to justify an allowance where the subject-matter involved is a two years' lease, subject to rent. (Heilman v. Lazarus, 90 N. Y. 672 [1882].) 314 CouETS or Recoed. [Rule 45 A demurrer is a defense.] Semble, that a demurrer is a defense within the meaning of that term as used with regard to extra allowances. (Winne V. Fanning, 19 Misc. Rep. 410 [1897].) Plaintiff not entitled to an extra allowance where he is not the success- ful party.] Where defendant conceded plaintiff's right to recover the sum demanded, but interposed a counterclaim on which he was awarded a sub- stantial recovery, the amount of which was deducted from the sum con- ceded to be due to plaintiff, an order for an additional allowance for plaintiff should be reversed. (Commercial Nat. Bk. of Chicago v. Hand, 27 App. Div. 145 [1898].) Allowed only where general costs are recovered.] Where a party, by the final judgment, does not recover general costs, but costs of the appeal only, he is not entitled to an additional allowance. (Savage v. Allen, 2 N. Y. Sup. Ct. E. 474 [Gen. T. 1874].) Indemnity — allowance is granted as.] An additional allowance is made by way of indemnity to the party succeeding in the litigation. The amount to be allowed must be fixed by the court, subject to the limitation in the statute that the maximum shall not exceed five per cent " on the amomit of the recovery, claim or subject-matter involved." (Burke v. Candee, 63 Barb. .552 [Sp. T. 1872].) A contingent interest of the attorney in the recovery where the re- covery is large militates against an additional allowance.] An extra allow- ance should not be awarded in an action against a railroad corporation wlierc the attorney for plaiutiiT has a contingent interest in the amount re- covered, which is a large one, and the case is not actually extraordinary and difheult. (Allen v. Albany Ry., 22 App. Div. 222 [1897].) Premature application.] A motion for an extra allowance in an action against an administrator is premnture, 'f )nade before the right to recover the ordinary taxable costs has been determined. (Mersereau v. Eyers, 12 How. Prac. 300 [Sp. T. 1856].) It seems that it might be made at the same time and upon the same papers with a motion for the ordinary costs. (lb.) Second motion for an additional allowance, when irregular.] A second motion for an additional allowance is irregular and properly denied when made without leave of the court after denial of the former motion. (Man- hattan Ry. Co. V. Klipstein, 84 Hun, 579 [1895].) Discretionary.] As a rule, the granting or withholding of an extra allowance is discretionary with the court to which the application is made. (Riley v. Hulbert, 13 N. Y. Wkly. Dig. 101 [1881]; Morss v. Hasbrouck, Id. 393 [1881].) Interference by appellate court.] An extra allowance is so much within the discretion of the trial judge that an appellate court seldom intervenes. The General Term will decline to interfere with an order denying an extra allowance, but providing for a renewal of the motion upon certain contin- gencies, where the appeal book does not contain all the papers used upon the motion. (Meyer Rubber Co. v. Lester Shoe Co., 86 Hun, 473 [1895]; Eames Vacuum Brake Co, v, Prosser, 88 id. 343 [1895].) Rule 45] Geneeal Rules of Peacticb. 315 An appellate court will only interfere in the event of an abuse of discretion.] The granting of an additional allowance is discretionary with the judge to whom application therefor is made, and the appellate court will interfere only in case of an abuse of discretion. (Proctor v. Soulier, 8 App. Div. 69 [1896].) Costs.] Extra allowance, when granted, forms part of. (Coates v. Godard, 2 Jones & S. 118 [Supr. Ct. 1871].) In murder trial.] Allowance may be made for each of several trials. (People V. Montgomery, 101 App. Div. 338.) Power of court to grant.] When court has power independent of statute to modify its judgment. (Cooper v. Cooper, 51 App. Div. 595, 164 N. Y. 576.) Section 3253 does not authorize granting of additional allowance of more than $200 in action to foreclose mortgage. (Waterbury v. Ardage Co., 152 N. Y. 610.) Applies only to action in which answer or dejnurrer interposed. (People V. F. R. R Co., 133 N. Y. 239.) No allowance in mandamus proceedings to reinstate employee, ( People %'. Hertle, 46 App. Div. 505.) Section 3253 authorizes extra allowance of five per cent, to be made to defendant in partition. (Grossman v. Wyckoff, 64 App. Div. 554. See United Press v. N". Y. Press Co., 164 N. Y. 406. Conrt may award more than $200 additional costs in foreclosure — when. (L. I. L. & T. Co. v. L. I. C. & N. R. Co., 85 App. Div. 36.) When an action may be difficult but not extraordinary in the purview of the statute. (Smith v. Lehigh Val. Ry. Co., 77 App. Div. 47. See, also. Standard Trust Co. v. X. Y. C. & H. R. R. Co., 178 N. Y. 407.) Difficult and extraordinary case resulting over counterclaim does not authorize extra allowance to plaintiif. (Huber v. Clark, 105 App. Div. 127.) Applicable to either questions of law or fact. (Am. Fruit Product Co. v. Ward, 113 App. Div. 319; Sehlegel v. R. C. Church of Brooklyn, 124 App. Div. 502; Matter of Water Supply in N. Y., 125 App. Div. 219.) ■ No extra allowance granted where issue raised by answer of one de- fendant not yet tried. (Bush v. O'Brien, 52 App. Div. 452.) Court cannot award parties in the aggregate more than five per cent. on value of subject-matter. (Doremus v. Crosby, 66 Hun, 125. See, also, Kirsch v. Macomber, 44 St. Rep. 654.) • Under section 3262, taxation does not apply to items the amount of which depends upon agreement. (McKeon v. Horsfall, 88 N. Y. 429. See Cassidy v. McFarland, 139 N. Y. 20a.) Court cannot make an extra allowance to the petitioners in a pro- ceeding for the voluntary dissolution of a corporation. (Matter of White Plains, etc., Ry. Co., 133 App. Div. 297.) Under Code, section 2562, executors are entitled to an allowance of ten dollars per day while preparing their account. (Matter of Martin, 124 App. Div. 793.) 316 CouETS OF Eecobd. [Rule 45 REFEREE — Where the action has been tried before a referee, the applica- tion must be made to a Special Term.] (Osborne v. Betts, 8 How. Prax;. 31 [Sp. T. 1853]; Howe v. Mtiir, 4 id. 252 tSp. T. 1850]; Sackett v. Bull, Id. 712 [Sp. T. 1849].) Referee's certificate — not sufScient unless facts be shovra to court.] A referee's certifieate, " that the inTestigatioa and trial of the cause involTed difficult questions of law, and which required and evidently received much examiination and preparation on the part of the counsel of the respective parties," is not such evidence as to authorize a court to make an additiwimi allowance. Facts mnst be presented to the court so that it may form its own opinion as to the nature of the case. (G'ould v. 'Cliapin, 4 Hotv. Prac. 185 [Sp. T. 1849] ; Main v. Pope, 16 id. 271 [Sp. T. 1858] ; Gori v. Smith, 6 Rob. 563.) Additional allowance granted on the certificate of a referee.] The defense interposed in an action to recover $19,354, for goods sold to defendants and delivered to various customers of theirs at different times' and! in different places, as directed by them, put in issue the sale and delivery of more than 300 items, proof of which was required and made, and the referee gave judg- ■ment for $200,000 in favor of plaintiff, and certified that the case was a difficult and extraordinary one. Held, that an additional allowance of $500 •was proper. {National Lead Co. v. Dauchy, 22 Jlisc. Rep. 372 [1898]. ) APPEAL — To Court of Appeals.] An order granting an extra allowance when it does not exceed the limits preserifeed by the Code is not reviewable in the Court of Appeals. (Southwiek v. South wick, 49 X. T. 519 [1872]; Krekeler v. Ritter, 62 id. 375 i:i875].) Does not lie from an order of the General Term, reversing an allowance by a surrogate.] A decision of a surrogate gi-auting an allowance is the subject of appeal to the General Terra on the merits (Lain v. Lain, 10 Paige, 191; Wilcox V. Smith, 26 Barb. 316), and may be reviewed by that court, and if without justification on the facts and circumstances of the case, re- versed entirely or modified and reduced, aad an order thereon resting in the discretion of that court cannot be reviewed in tlie Court of Appeals. i(Noyes V. Children's Aid Society, 70 N. Y. 481 11877].) An order for an extra allowance affects a substantial right, and is appealable to the General Term.] (People v. N. Y. C. R. R. Co., 29 N. Y. 418 [1864].) Additional allowance — discretion of the trial court not disturbed.] An additional allowance is made by way of indemnity to the successful party, and the General Term will not ordinarily interfere with the discretion exer- cised in granting it (Meyer Rubber Co. v. Lester Shoe Co., 86 Hun, 475 [1895]. See, also, Sheridan v. Interborough R. T. V-o., 101 App. Div. 534; Schiff V. Tamor, 104 App. Div. 42.) When Appellate Division cannot pass upon motion for extra allow- ance.] The Appellate Division in which exceptions have been ordered heard in the first instance cannot pass upon a motion for an extra allowance of costs, as that question must be determined in the trial court before their taxation. (Riverside Bank v. Jones, 75 App. Div. 531.) Eule 47] Geneeal Eules of Peactice. 317 ETJLE 46. Motion to Amend a Justice's Return on Appeal where the County Court can- not Act — When to be Noticed. On appeal from a justice's judgment, where a County Court has not jurisdiction, by reason of relationship, etc., a notice of motion for an order to compel the justice to amend his return may be given in twenty days after the date of the certificate of the county judge, and not after that time. Rule 53 of 1S58. Rule 57 of 1871. Rule 57 of 1874. Rule 48 of 1877. Eule 45 of I88G. Rule 45 of 1884. Rule 45 of 1888. Rule 46 of 1896. CODE OF CIVIL PROCEDURE. § 3053. Return of justice of the peace on appeal from a judgment. § 3054. Return — when justice is out of office. § 3055. Further return — how compelled. § 3056. Proceedings when justice dies, etc., before making a return. Facts stated in return of justice cannot be controverted by aflS.davit.] (Thompson y. Sheridan, 80 Hun, 33.) When writ will not issue.] (People v. Smith, 184 N. Y. 96) An amended return is proper to show whether the justice attended at the adjourned hour.] (Flint v. Gault, 15 Hun, 213.) Order of county court directing amended return may be reviewed oa appeal.] (Barber v. Stettheimer, 13 Hmi, 198.) Section 3056 applies to appeal from Municipal Court.] (Walker t. Baerman, 44 App. Div. 587.) RULE 47. Limitations as to Hearing of Counsel. At the hearing of causes at the Appellate Division or at Special Term, not more than one counsel shall be heard on each side, and then not more than one hour each, except when the court shall otherwise order. On appeals from orders and on non-enumerated motions, but one counsel on each side shall be heard, and not more than thirty minutes each, unless the court shall otherwise order. The Appellate Division in any department may make such 318 CouETS OF Eecoed. [Eule 48 further or different regulations upon tliese subjects as it may deem proper. Rule 54 of 1858. Rule 58 of 1871, amended. Rule 58 of 1874, amended. Rule 49 of 1877. Rule 46 of 1880. Rule 46 of 1884. Rule 46 of 1888, amended. Rule 47 of 1896. See notes under Rule 29. RULE 48. Stay of Proceedings, for Change of Venue; Affidavits, on Motion to Change Venue. !N"o order to stay proceedings for the purpose of moving to change the place of trial shall be granted unless it shall appear from the papers that the defendant has used due diligence in preparing the motion for the earliest practical day after issue joined. Such order shall not stay the plaintiff from taking any step, except subpoenaing witnesses for the trial, without a special clause to that effect. On motions to change the place of trial, the moving party shall state the nature of the controversy and show how his witnesses are material, and the grounds of his belief that the testimony of such witnesses will be favorable to his contention, and shall also show where the cause of action arose, and such facts shall be taken into consideration by the court in fixing the place of trial. Rule 58 of 1858. Rule 59 of 1871. Rule '59 of 1874, amended. Rule 50 of 1877. Rule 47 of 1880. Rule 47 of 1884. Rule 47 of 1888. Rule 59 of 1858. Rule 60 of 1871. Rule 60 of 1874, amended. Rule 51 of 1877. Rule 48 of 1880. Rule 48 of 1884. Rule 48 of 1888. Rule 48 of 1896. Rule 48 as amended, 1910. See notes as to stay under Rule 37. CODE OF CIVIL PROCEDURE. § 775. Stay of proceedings — when not to exceed twenty day«. The following provisions are confined to cases in the Supreme Court: § 982. Certain actions to be tried where the subject thereof is situated. § 983. Other actions where the causes thereof arose. § 984. Other actions according to the residences of the parties. § 985'. Place of trial if the proper county be not designated. § 986. Defendant may demand change of place of trial — proceedings thereon. § '987. When the court may change the place of trial. § 988. Effect of changing the place of trial — transfer of papers. Kule 48] Geneeal Eules of Peactice. 319 I 985. Order to change the place of trial — when it takes effect — except for purposes of appeal thereform. CHANGE OF VENUE — The established rules wiU not be relaxed.] The established rules as to the contents of affidavits to be used on motions to change the place of trial will not be relaxed. (Carpenter v. Continental Ins. Co., 31 Hun, 78 [1883].) — Rules must be strictly observed.] The defendants upon an application to change the .place of trial for the convenience of witnesses must strictly comply with the requirements of the decisions. (John T. Noye Mfg. Co. v. Whitmore, 23 Wkly. Dig. 524 [Sup. Ct. 1885].) The witness must swear to advice of counsel.] The afiBdavit for a change of venue must state that the party is advised by counsel that he can- J not safely proceed to trial without the testimony of each of the witnesses}, named A mere statement by the party that he cannot do ao is insufficient. (Eanderson v. White Star Towing Co., 26 Misc. Rep. 305 [1899].) Where neither party resides in the county of the venue.] Where a plaintiff has laid the venue of an action in a county in which neither he nor the defendant resides, he should not, by consenting to remove the place of trial to his own county, be allowed to defeat an application by the defendant for a change of venue to the county of the latter's residence. (Loretz v. Metro- politan St. R. Co., 34 App. Div. 1 [1898].) Affidavit should state facts to be proved by.] The affidavits should show how the witnesses are material ; they should show distinctly what facts are to be .proved by the several witnesses named, specifying them, so that the court may judge of their materiality. (Price v. Fort Edward Water Works Co., 16 How. Prac. 51 [Sp. T. 18S7].) The affidavit should disclose the grounds of the witnesses' knowledge.] A moving affidavit which alleges that defendant expects to prove certain facts by the witnesses named, but fails to state that the facts can be proved by them, and does not disclose grounds showing the probability thereof, is insuf- ficient. (Lyman v. Grammercy Club, 28 App. Div. 30 [1898].) The moving and opposing papers on such an application should dis- close the occupation and residence by street and number of every person desig- nated therein as a material witness, when such person resides in a city. (lb-) What is a sufficient affidavit.] An affidavit used on a motion to change the venue for the convenience of eight witnesses, which stated " that this defendant has conversed with the several witnesses herein named, and each and every witness has a vivid recollection of the different conversations had between this defendant and plaintiff, at the times herein mentioned, and each and every witness so named is prepared to give testimony on the trial of this action as herein set forth, and the deponent avers that he can prove on the trial of this cause all of the material facts as herein set forth by each of the respective witnesses herein named," sufficiently shows that the defendant can prove what he expected to by the witnesses. (Rheinstrom v. Weir, 5 App. Div. 109 [1896].) Affidavit, when informed and defective.] In an action brought in the county of Monroe to recover damages for a personal injury alleged to have 320 CouETs OF Eecoed. [Eule 48 heen received by the plaintiff through the negligence of the defendants' servant in running against him witli a coach and horses on a street in the city of New York, the defendants moved to change the place of trial to the ooainty of New York on the ground of the convenience of witnesses. The moving affi- davit, made by one of the defendants, which was not aided by the pleadings, failed! to allege -any statement of the facts to counsel or the advice of counsel, and failed to show any reason for the belief of the affiant that the proposed witnesses would testify as stated, or to disclose facts sufficient to enable the court to ascertain therefrom that more than one of the proposed witnesses residing in the county of New York were material and necessary witnesses. Held, that the affidavit was too informal and defective to warrant the granting of the motion. (Chapin v. Overin, 72 Hun, 514 [1893].) To change the place of trial for convenience of witnesses — what the ( affidavit should contain.] Affidavit and notice to change venue for con- j venience of witnesses should set out the grounds for the belief that the wit- 1 nesses are material. (ICelly v. Matham, 2 X. Y. Wkly. Dig. 173 [Sup. Ct. 1875].) In partition suit.] If in a partition action defendant's witnesses are many more than tiiose for the plaintiff, and all reside in the county where the testator resided, but not in the same county where the venue is laid, a motion may be granted changing the place of trial to the county in which they reside; and the order of the court allowing this change of venue should te sustained, unless it is apparent that this discretion has been misused, and also although the property sought to be partitioned is almost within the county where the venue is laid. (Nelson v. Nelson, 50 St. Rep. 446 [Sup. Ct. [1892].) In a replevin action.] In an action of replevin to recover goods sold to defendant's transferrer, the sale being disaffirmed on the gronnd of fraud, and the sale and transfer having been made in another county than that in which suit was brought, a change of venue to the county where the trans- actions took plax;e is properly granted. (Zenner v. Dexter, 92 Hun, 195 [1895].) Assault — proof of condition after it.] ^Vhere, in an action for as- sault, the defense is based upon an allegation that the assault was made by plaintiff and not by defendant, the latter is entitled, upon motion, to a change of venue for the convenience of witnesses, even if they can only testify in re- gard to the condition of defendant after assault, that being material testimony. (Banks v. Bensky, 27 St. Rep. 135 [Sup. Ct. 1S89].) j AfEdavit should state what witness will prove.] The affidavit should [ state what is expected to be proved by the several witnesses. (American Ex- l change Bank v. Hill, 22 How. Prac. 29 [Sp. T. 1861] ; Price v. Fort Edward Water Works Co., 16 id. 51 [Sp. T. 1857].) Word " necessary " need not be used in the affidavit.] On an applica- tion made by a defendant to change the place of trial, on the ground of the convenience of witnesses, if the moving affidavit states that each and every of the witnesses mentioned are material witnesses for the deponent on the trial of the cause, and that without the testimony of each and every one of Eule 48] Ges"eeal Euxes of Pbactice. 321 them the moving party cannot safely proceed to tria.1, as he is advised' by his counsel and believes, he shows that the witnesses are necessary as well as I material, although the word " necessary" is not used in the affidavit. (Smith v. Mack, 70 Hun, 517 [1893].) Affidavits failing to state names, residences and that witnesses would testify are insufficient.] Affidavits in support of a motion to change the venue which fail to state the names and residences of the witnesses, and that they will testify to the facts alleged to be material to the defense, are insuffi- cient. (Lyman v. Corey, 28 App. Div. G23 [1898].) Affidavit must show material facts.] Upon a motion to change the place of trial for the convenience of witnesses, an affidavit mu.st disclose grounds which show that material facts can probably be proved by such wit- nesses. (Tuska V. Wood', 30 N. Y. Supp. 523 [Sup. Ct. 1894].) — —Expectations not sufficient.] An application for change of venue should not be granted when the applicant simply states his expectations with- out showing upon what they are based. (Imgard v. Duffy, 73 Hun, 255 11893].) What statement of expectation in the affidavit is sufficient.] Wher- ever, from an inspection of the papers upon a motion for a change of venue, it appears that there is a reasonable ground for the expectation of the moving party that he will be able to prove by the witnesses the facts stated, that is, that the witnesses must necessarily know the facts, the court may fairly con- clude in the exercise of its discretion that the statement of such expectation is the equivalent of a positive statement of ability, even where the affidavits of the witnesses are not produced on the motion. (Hayes v. Garson, 25 App. Div. 115 [1898.]) Affidavit in third department need not state to what witnesses will testify.] Upon a motion in the third department to change the venue for the convenience of witnesses, it is not held absolutely necessary to state the ground of affiant's expectation that the witnesses will testify to the facts to which it is alleged they will testify, though a failure to do so may be con- sidered in passing upon the merits of the motiora. (Bell v. Whitehead Bros. Co., 5 App. Div. 555 [1896].) What is an insufficient affidavit.] A motion by a defendant for a change of venue must be made on a sufficient affidavit of merits; it is not sufficient that he expects to prove certain things by his witnesses, instead of stating that he can prove them. (Wliite v. Hall, 8 App. Div. 618 [1896].) Third department — failure to allege grounds of expectation of testi- mony.] Failure to allege the grounds of the defendant's expectations that the witnesses named by him will testify to the facts stated, is not, in the third department, a fatal defect in the papers upon which he moves for a change of venue. (Siimit v. Cambridge Valley Agricultural Soc. & S. B. Assn., 27 App. Div. 318 [1898] ; McPhail v. Ridout, 83 Hun, 446 [1894].) Information of the affiant, not disclosed.] It is not necessary that it should be stated in the moving affidavit what information the affiant had, 21 32^2 CouETS OF Kecoeb. [Eule 48 which enabled him to state that the several .persons named as necessary wit- nesses would testify to the facts as set forth in the aflfidavit. (Smith v. Ma«k, 70 Hun, 517 [1893]; Myers v. Village of Lansingburgh, 54 id. 623 [1889].) — Important to show their materiality.] Very little reliance can be placed upon an allegation of the materiality of witnesses, unless it can be shown wherein they are material. But the place of trial may be changed upon such an, affidavit where no witnesses are sworn to reside in the county where the venue is laid. (People v. Hayes, 7 How. Prac. 248 [®p. T. 1852].) As to the materiality of the witnesses.] (Anonymous, 3 Wend. 425 [Sp. T. 1830]; Constantine v. Dunham, 9 id. 431 [Sp. T. 1832]; People v. Hayes, 7 How. Prac. 248 [Sp. T. 1852].) That the party cannot safely proceed to trial.] (Anonymous, 3 Wend. 425 [1830]; Constantine v. Dunham, 9 id. 431 [1832].) That he has a defense upon the merits.] (Chemung Canal Bank v. Bd. Supervisors, 1 How. Prac. 162 [Sp. T. 1845].) That he has stated his case to his counsel.] (Lynch v. Mosher, 4 How. Prac. 86 [Sp. T. 1849].) That he has stated to his counsel the facts that he expects to prove by his witnesses.] (Dennison v. Seymovir, 9 Wend. 9 [1832].) As to the names of the witnesses.] (Anonymous, 6 Cow. 389 [Sp. T. 1826].) Should be made by the defendant himself.] The affidavit to change the venue for the convenience of witnesses should be made by the defendant himself, except under peculiar circumstances. (4 Hill, 62, note [1842].) Upon what facts motion granted.] Where the plaintiff does not swear that any witnesses reside in the county where the venue is laid, but his affi- davit tends to show that no real defense exists, and the defendant swears that nineteen witnesses reside in another county, the motion should be granted. (Wiggin V. Phelps, 10 Hun, 187 [1877].) Upon what a decision will be based.] What principles will govern the court in deciding with reference to a change of venue. (King v. Vanderbilt, 7 How. Prac. 385 [Circuit, 1862].) Where a defendant moving to change place of trial shows that the 'contract was made to be performed in the county of his residence, where the greater number of witnesses resided, while the plaintiff and a single witness besides himself resided in the county where the venue was laid, the place of trial should be changed. (Jacobson v. German American Button Co., 124 App. Div. 251; Lewis v. Phoenix Cap Co., 115 App. Div. 188.) Where cause of action on contract arose wholly in the county of New York, and all the witnesses reside in that county or in Kings, with the exception of the plaintiff, who laid in the venue in Schenectady county, the place of trial should be changed to one of the other counties. (Shapiro v. Klar, 136 App. Div. 91.) Where plaintiff in negligence action lays the venue in a county of which he is not a resident, the defendant is entitled as a matter of right to have the venue changed to the county of its residence irrespective of the convenience of witnesses. (Lageza v. Chelsea Fibre Mills, 135 App. Div. 731.) Eule 48] General Rules of Peactige. 323 Stay of proceedings.] Section 775 not applicable to stay for purposes of motion for rearguanents (F. B. N. Co. v. Mackey, 158 N. Y. 683), or to order extending time to amend answer (Clondon v. Church of St. Augustine, 14 Misc. Rep. 181). CONVENIENCE OF WITNESSES — The greatest number of witnesses.] How far the court will decide in favor of the party who swears to the greatest number of witnesses. (Sherwood v. Steele, 12 Wend. 294 [Sp. T. 1835] ; Austin v. Hinckley, 13 How. Prao. 576 [Sp. T. 1856] ; Wood v. Bishop, 5 Cow. 414 [Sp. T. 1826]; Benedict v. Hibbard, 5 Hill, 509 [Sp. T. 1843]; Weed V. Halliday, 1 How. Prac. 73 [Sp. T. 1845].) Seventy-eight witnesses — regarded as a fraud.] Where the defendant swore to seventy-eight witnesses that were material to his defense in an action of assiunpsit, it was regarded by the court as a fraud, and the motion was denied. (Garbutt v. Bradner, 1 How. Prac. 122 [Sp. T. 1845]. See Wallace V. Bond, 4 Hill, 556 [Sp. T. 1842].) In the county where the witnesses reside — independent of their dis- tance from courthouse.] The trial should be had in the county where the witnesses reside, even though they may be required to travel a greater dis- tance than to the courthouse in an adjoining county in attending court. (People V. Wright, 5 How. Prac. 23 [Sp. T. 1850] ; Hull v. Hull, 1 Hill, 671 [1841]; Beardsley v. Dickinson, 4 How. Prac. 81 [Sp. T. 1848].) Convenience of resident witnesses alone considered.] The convenience of resident witnesses will alone be considered in deciding the motion to change the venue. (Rathbone v. Harman, 4 Wend. 208 [1830]; Williams v. Fellows, 9 id. 451 [1832]; Hull v. Hull, 1 Hill, 671 [1841].) Witness outside the State — not considered.] The convenience of witnesses who reside outside of the State will not be considered upoa a motion to change the venue. (Bowles v. Rome, Watertown, etc., R. R. Co., 38 Hun, 507 [1886].) ; That it will inconvenience the plaintiff, not considered.] Where a change of venue of an action to the county where the cause of action arose will promote the convenience of witnesses, the fact that such change will involve inconvenience to the plaintiff does not operate to prevent it. (Hedges V. Bemis, 38 App. Div. 349 [1899].) Residence of those acquainted with facts considered before that of experts.] An order made in an action on the defendant's motion changing the venue from New York to Hamilton county for the convenience of witnesses, should be reversed where it appears that though he is a resident of the latter county, he has an office in New York and that the witnesses whose convenience he seeks to serve are expert ■witnesses by whom he " expects to prove " the value of lands upon which the mortgages in question are a lien and that all the other witnesses acquainted with the particular facts of the case reside in New York. (Bushnell v. Durant, 83 Hun, 32 [1894].) Venue not retained for convenience of expert witnesses.] The conven- ience of expert witnesses is not to be consulted in fixing the place Of trial. (Adriance, Piatt & Co. v. Coon, 15 App. Div. 92 [1897].) 324 CouETS OF Eecoed. [Kule 48 Convenience of witnesses where a village is defendant.] In an action against a village brought by the widow of an attorney to recover for legal services as his administratrix, the complaint alleged, among other things, the advising with village tnastees, and consulting and advising with officers of the defendant in the matter of the construction of a system of water works for the defendant village. Held, that the convenience of witnesses would be sub- served by changing the place of trial to the county in which the village was situated. (Harrington v. Village of Warsaw, 4 App. Div. 181 [1896].) Where the proper venue for convenience of witnesses is doubtful the place where the action arose may control.] Wbeu it is uncertain in which county a transitory action should be tried for the convenience of witnesses, the venue should be changed to the county where the cause of action arose, though it be originally laid in the county of plaintiff's residence and the county to which it is removed is not that of the defendant's residence. (Haus- mann v. Moore, 7 App. Div. 459 [1896].) Venue not changed from Westchester to New York county for the convenience of witnesses.] The venue will not be changed from Westchester to New York county upon the ground of convenience of witnesses. (Brink v. Home Ins. Co., 2 App. Div. 122 [1896].) Nor from any rural county to New York or Kings. (Quinn v. B. H. E. Co., 88 App. Div. 57; Hirschkind v. Mayer, 91 App. Div. 416.) Westchester county — portion annexed to New York.] The portion of Westchester county annexed to the city and county of New York by Laws IStJS, chaper 934, still continues to be a part of Westchester county for the purpose of determining the venue of an action under the Code of Civil Pro- cedure, section 984. (Zeimer v. Eafferty, 18 App. Div. 397 [1897].) Change of venue from Queens to New York county — when granted.] While the 'place iof trial will not be changed from Queens county to the county of New York, merely to suit the convenience of witnesses, yet where the cause of action arose in the latter county, and both plaintiff and defendant reside there, a change of venue is proper. (Navratil v. Bohm, 26 App. Div. 460 [1898].) Change to New York county from a rural county.] The rule that the trial of an action will not be transferred from a rural county to the city of New York, if such rule exists, does not apply to a motion to change the place of trial from Erie county to the county of New York. (Osterhout v. Eabe, 39 App. Div. 413 [1899].) When venue changed from Rensselaer to Alhany county.] Venue changed from Rensselaer county to Albany county, in Which the cause of action arose, and a majority of the witnesses resided. (Fielding v. Cohoes Masonic Temple Assn., 23 Misc. Rep. 52 [1898].) Changing venue for convenience of witnesses in action for malicious prosecution.] -The court may, under the Code of Civil Procedure (§ 987), for the convenience of witnesses, change the place of trial of an action for mali- cious ^prosecution to a county in which neither party resides. (Herbert v. Griffith, 2 App. Div. 566 [1896].) Eule 48] Geneeal Eules of Practice. 325 —— Place decided by the number of witnesses.] When it appears from the moving papers that defendant's witnesses outnumber those of the plaintiff, his motion for a change of venue sliould be granted, and it is not a sufficient ground for denial that a promise be given that the witnesses will be examined before a referee in the county in which they reside, but where the necessary witnesses are the same in number on both sides the trial should be had in the county in which the subject-matter of the action is located. (Belding v. Ladd, 27 St. Eep. 296 [Sup. Ct. 1889].) Venue where defendant's witnesses are more numerous.] An action for the conversion of moulding sand taken in Saratoga county and shipped away by the defendant, who claimed to have owned the sand, all of defendant's witnesses residing in Saratoga county, and only a part of plaintiff's in Greene county, where the venue was laid, held, to be properly removed for trial to Saratoga county. (Bell v. Whitehead Bros. Co., .5 App. Div. 555 [1896].) Conflicting applications.] The defendant is entitled to a change of venue when proper, although the plaintiff has made an independent motion to retain the place of trial for the convenience of witnesses. (Stimson v. Stim- son, 29 St. Eep. 21 [Sup. Ct. 1890].) What may be shown in the opposing affidavits.] As to what the plaintiff may show in his opposing affidavit. ( See Gilbert v. Chapman, 1 How. Prac. 54 [Sp. T. 1844] ; Spencer v. Hurlburt, 2 Caines, 374 [Sp. T. 1805] ; Anon., 7 Cow. 102 [Sp. T. 1827] ; Onondaga Co. Bank v. Shepherd, 19 Wend. 10 [1837]; Sherwood v. Steele, 12 Wend. 294 [1835].) Change of venue to county plaintiff's residence on defendant's motion that it be changed to the defendant's county.] Where an action is brought in a county in which neither of the parties reside, it is improper for the court, on motion of the defendant to change the venue to the county in which he resides, to change it to the county of plaintiff's residence. (Loretz v. Metro- politan St. R. R. Co., 34 App. Div. 1 [1898].) Opposing affidavit — when insufficient.] An affidavit in opposition to a motion for change of venue, which merely states the party's belief as to the materiality of his witnesses, but does not aver that he has stated the facts to counsel, or been advised by him on that subject, is insufficient. (Sinnit v. Cambridge Valley Agricultural Society & Stock Breeders' Assn., 27 Misc. Eep. 586 [1899].) Where all the defendants do not join in the motion the reason must appear.] Where a motion to change the place of trial for the convenience of witnesses was made by two of four defendants, held, that it should be denied in the absence of evidence as to why the other defendants had not united in the application. (Bergman v. Noble, 10 Civ. Proc. R. 190 [Sup. Ct. 1886] ; Welling v. Sweet, 1 How. Prac. 156 [Sp. T. 1845]; Lyman v. Grameroy Club, 28 App. Div. 30 [1898].) Motion should be on notice to all the parties.] An action brought by a citizen of the State to cancel a grant of a right of way by the Forest Com- mission, should, in accordance with Code of Civil Procedure (§ 982), be tried in the county where the lands in question are situated ; but a motion made to change the venue to such eounty should be made upon due notice to all the parties to the action. (Sherman v. Adirondack Ey. Co., 92 Hun, 39 [1895].) 32'6 CouETS OF Eecoed. [Kule 48 Notice to other defendants.] As to notice to the other defendants, where a motion is made by only one of several defendants. (See Chace v. Benham, 12 Wend. 200 [1834]; Welling v. Sweet, 1 How. Prao. 156 [Sp. T. 1845].) No di:]tinction between actions ex contractu and ex delicto.] In re- gard to motions to change the place of trial there is no distinction between actions ex contractu and actions ex delicto. (Sailly v. Hutton, 6 Wend. 508 [1830].) Motion "to change the venue, or place of trial," good.] A notice of motion in the alternative, " to change the venue or place of trial," is sufficient. (Hinohman v. Butler, 7 How. Prac. 462 [Sp. T. 1852].) By whom to be made.] By whom the motion to change the venue should be made. (Mairs v. Remsen, 3 C. E. 138 [Sp. T. 1850]; Legg v. Dor- sheim, 19 Wend. 700 [1839].) The venue can only be changed in the cases specified.] The place of trial in the Supreme Court can only be changed in the cases specified in the statute. (Birmingham Iron Foundry v. Hatfield, 43 N. Y. 224 [1870].) Practice as to motions to change to proper county, and to change for the convenience of witnesses.] The right of the defendant to have a cause moved to the proper county cannot be met by affidavits as to the convenience of witnesses. If the convenience of witnesses requires that the trial be had in a particular county, a separate motion upon such grounds must be made. (Veeder v. Baker, 83 Jv^ Y. 156 [1880] ; Gifford v. Town of Gravesend, 8 Abb. N. C. 246.) When motion may be made.] When the place of trial of an action is not laid in the proper county, the defendant, under the provision of the Code of Civil Procedure ( § 986 ) , which requires a demand for trial in the proper county to be served with or before service of the answer, retains the right to insist that the trial shall be so had until he has finally defined the issues to be tried, and, therefore, v/hen he avails himself of the right to serve an amended answer, a demand that the trial be had in the proper county served with the amended answer is sufficient. (Penniman v. Fuller &, Warren Co., 133 X. W. 442.) When premature.] It is premature to make a motion to change the place of trial for convenience of witnesses, where a demurrer is interposed to the merits of the defense. (Moore v. Pillsbury, 43 How. Prac. 142 [Sp. T. 1872].) Appearance and demand, when necessary.] An appearance and demand are necessary before a motion can be made, on the ground that the action was not brought in the proper county. (Van Dyke v. JIcQuade, 18 Hun, 376 [1879].) Demand for change not necessary.] It is not necessary, before making a .motion to change the venue for the convenience of witnesses, to make a de- mand in writing to have the trial in the proper county. (Hinchman v. Butler, 7 How. Prac. 462 [Sp. T. 1862].) Denied if made for delay.] The motion will be denied where it ap- appears that it is made for the purpose of delay. (Kilbourn v. Fairohild, 12 Eule 48] Geneeal Eules of Peactice. 327 Wend. 29 [1835]; Haywood v. Thayer, 10 id. 571 [1833]; Garlock v. Dunkle, 22 id. 615 [1840].) That plaintiff will lose a term, not ground for denial.] The fact that the plaintiff will lose a term by reason of a change of venue, where the de- fendant is not guilty of laches, is no reason for refusing such change. (Gar- lock V. Dunkle, 22 Wend. 615 [1840].) When a change will delay the trial.] When it is apparent that a change of venue will delay the trial of a case, and that it will not be for the convenience of plaintiff's witnesses, they being in the majority, defendant's motion to change the place of trial should not be granted. (Fowler v. Third Ave. R. E. Co., 29 St. Rep. 285 [Sup. Ct. 1890].) In an action for unlawful arrest.] Where it appears that all the material witnesses reside in the county where the cause of action arose, venue will be changed to that county. (Archer v. Mcllravy, 86 App. Div. 512 [1903].) Place of trial, New York county, after annexation.] (Haukins v. Pelham, etc., Co., 158 N. Y. 417.) As to cities of the second class.] (See Czarnowski v. City of Rochester, 55 App. Div. 388.) Notice to codefendant who has not appeared — when not required.] (North Shore Indust. Co. v. Randall, 108 App. Div. 232.) Proper place of trial.] (See Miles & Gibb v. Starin, 119 App. Div. 336; Chappel v. Chappel, 125 App. Div. 127; Veeder v. Baker, 83 N. Y. 15G; Conley v. Carney, 126 App. Div. 337.) Court cannot of its own motion change place of trial of transitory action.] (Phillips v. Tietien, 108 App. Div. 9.) Demand for change of place of trial may be served with amended | answer.] (Peniman v. F. & W. Co., 133 N. Y. 442. Harman v. Van Ness, / 58 App. Div. 160.) | Change of venue to proper county, one of right.] (Sheperd v. Squire,' 76 Hun, 598. See, also. Carpenter v. Cont. Ins. Co., 31 Hnn, 78; Nat. Com. Co. V. H. R. W. Co., 63 App. Div. 613.) Foreign corporation cannot become resident of this State.] (Shepard & Morse Lumber Co. v. Hurleigh, 27 App. Div. .101.) Action against railroad company may be brought in county where road is operated, although plaintiff did not live there, and principal ofiSce of company was in another county.] (Poland v. United States Trac. Co., 88 App. Div. 281; afTd., 177 N. Y. 557.) Term residence discussed.] (Washington v. Thomas, 103 App. Div. 423.) PLEADINGS AS FIXING THE VENUE — Variance as to venue between the summons and complaint.] The mere inadvertence of an attorney in naming a different place of trial in the complaint from that mentioned in the summons will not effect a change of the venne if he move promptly to correct it. (Fisher v. Ogden, 12 App. Div. 602 [1897].) The complaint controls.] Where the place of trial designated in the complaint varies from that in the summons the former controls; and where 328 Courts of Recoed. [Rule 4-8 the cause is placed on the calendar of the county mentioned in the summons only, it may be struck therefrom on defendant's motion if the complaint refers to a different place of trial. (/&.) NOTICE OF TRIAL — Effect of.] A party by noticing a case for trial at a certain term and then appearing and securing a continuance, waives his right to subsequently move for a change of venue. (Coleman v. Hayner, 92 App. Div. 575.) PLACE — place of transaction.] The trial should be had in the county where the principal transaction between the parties occurred, and where it appears that the largest number of the Tvitnesses, acquainted vrith the facts, reside. A majority of witnesses should not necessarily control. (Jordan v. Garrison, 6 How. Prae. 6 [Sp. T. 1S51] ,• Goodrich v. Vandexbilt, 7 id. 467 [Sp. T. 1852].) County in which the transaction took place favored.] On a motion made to change the place of trial of an action, it is proper for the Special Term to give weight to the circumstance that the cause of action arose in the county to which the venue is sought to be changed and that the principal transactions involved in the decision of fact took place in such county. (Payne v. Eureka Elec. Co., 88 Hun, 250 [1895].) When the venue will be changed to the place of the transaction.] An order changing the venue of an action .should be granted when it is apparent that the cause of action arose in the county to which it is sought to remove the action, and when it is also shown by the af&davits that it would be for the convenience of a majority of the necessary witnesses to have the place of trial changed. (Lyon v. Davis, 27 St. Eep. 517 [Sup. Ct. 1889].) The place of trial may be fixed by stipulation.] Where the parties to a contract so stipulate therein the place of trial in any litigation arising under it must be that named in the contract. (Greve v. JEtna, Live Stock Ins. Co., 81 Hun, 28 [1894].) Where the preponderance of witnesses are in the county of the trans- action.] The place of trial should be changed for the convenience of wit- nesses to the county in which the cause of action originated, where there is apparently a preponderance of witnesses residing in such county. (Kubiac v. Clement, 35 App. Div. 186 [1898].) When the place of the transaction determines the venue.] An order should direct that the venue be laid in the county in which the subject-matter of the action is located, when upon motion to change the place of trial for the convenience of witnesses the affidavits do not agree. (Maynard v. Chase, 30 St. Eep. 348 [Sup. Ct. 1890].) It controls where the number of witnesses is the same.] WTiere the number of witnesses on each side is the same, the place of transaction will control in deciding a motion for change of venue. ( Osterhout v. Babe 39 App. Div. 413 [1899].) Where the transactions occurted in two counties.] One Osbom, a resident of Westchester county, assigned a crop of growing tobacco to one Stephens as security for a debt, and afterward sold snch crop and applied the proceeds to his own use. Stephens, after the sale, agreed to loan the proceeds Eule 48] Gekeeal Edles of Peagtice. 329 thereof to Osbom's wife on her note for four months, and did so. The note was not paid, and Osborn vi;as arrested upon a criminal charge of larceny in Westchester coimty, and taken to Tompkins county, where he was discharged. In an action brought by Osborn against Stephens for malicious prosecution the yenue was laid in Westchester county. Held, that it could not be said that the place of the transaction was entirely in Tompkins county, and that an order changing the place of trial to Tomp- kins county for the convenience of witnesses should be reversed. (Osborn v. Stephens, 74 Hun, 91 [1893].) Convenience of witness preferred to place of contract.] Even if the contract in question was made in the county in which an action is brouglit, defendant's motion to change the venue should be granted if it is apparent that such change would be more convenient for the witnesses. (Perry v. Boomhouer, 43 St. Rep. 375 [Sup. Ct. 1892].) Other considerations besides convenience of witnesses.] Upon the decision of a motion to change the place of trial of an action for the con- venience of witnesses, there are other controlling considerations to be taken into account besides the number of the necessary witnesses of the parties. (Tuthill V. Long Island R. R. O., 75 Hun, 556 [1894]; Payne v. Eureka Electric Co., 88 id. 250 [1895].) Fair and impartial trial — what proof that it cannot be had required.] When an accused person applies to change the place of trial he must make a clear case that, by reason of popular passion or prejudice, he cannot have a fair and impartial trial in the county where the venue is laid. Affidavits stating the belief of persons that a fair trial cannot be had are not sufficient. Facts and circumstances must be stated. (People v. Sammis, 3 Hun, 560 [1875].) Proof required as to an impartial trial being impossible.] Defendant's motion to change ;the place of trial should not be denied because the plaintiff, in order to i^etain the venue, claims that a trial cannot fairly and impartially be had in the county to which defendant has applied to remove the action, when it is not positively shown from plaintiff's affidavit why an impartial trial cannot there be had. (People v. 'Snaith, 8 N. Y. Supp. 668 [Sup. Ct. 1899].) When a matter of right.] The application for a change of the place of trial of an action from the county in which the action was brought, wherein none of the parties thereto resided, to the proper county, if the demand for the change of the place of trial be served in time, is one of right. (Ganz v. Edison Electric Illuminating Co., 79 Hun, 409 [1894].) When it should be changed upon demand.] An action must be tried in the county in which one of the parties resided at the time of the commence- ment thereof, and where the summons in an action designated the county of Mom'oe, in which none of the parties resided, as the place of trial, and two of the platatiffa resided in the county of Herkimer, the place of trial should be changed from the county of Monroe to the county of Herkimer, upon proper demand, and the fact that the defendants were nonresidents of the State does not deny to them the benefit of the statute providing for the 330 CouETS OF Eecoed. [Rule 48 change of the place of trial of the action to a proper coimty. (Shepard v. Squire, 76 Hun, 598 [1894].) When court, on motion to change for convenience of witnesses, cannot change because improper county is named.] On a motion to change the place of trial for the convenience of witnesses, a court cannot order a change for the reason that the proper county is not designated in the summons, where no pervious demand to have such change has been made. (Couch v. Lasher, 17 How. Prac. 520 [Gen! T. 1859].) Demand to change not defeated by a stipulation.] Place of trial of an action to set aside as fraudulent a general assignment covering real estate. The right to demand a change of venue cannot be defeated by an offer by the plaintiff to stipulate not to attempt to reach tlie real estate. (Vi'yatt v. Brooks, 42 Hun, 502 [Gen. T. 1886]; Smith v. Averill, 1 Barb. 28 [Sp. T. 1847]. Offer to pay expenses of witnesses. (Worthy v. Gilbert, 4 Johns. 492 [Sp. T. 1809]; Eathbone v. Harman, 4 Wend. 208 [Sp. T. 1830].) Stipulation as to evidence.] How far a change will be prevented by a stipulation to give no evidence, except of matters occurring in the county where the venue is laid. (Smith v. Averill, 1 Barb. 28 [Sp. T. 1847].) A stipulation that witnesses would swear as stated not accepted.] Upon appeal from an order which denied a motion for change of venue, the appellant having shown that all the transactions in question took place and all the witnesses resided in the county to which it was desired to change the place of trial, it was held that the order should be reversed and that a stipulation stating that witnesses would testify as the moving papers alleged they would could not be substituted for their presence and testimony. (AVright V. Burritt, 45 St. Pep. 9 [Sup. Ct. 1892].) A stipulation as to the date of issue — it does not bar a change of venue.] A stipulation, given by the defendant on obtaining an extension of time to answer that the date of issue should be that on which service of the answer was due, does not prevent the defendant obtaining a change of venue. (Perkins v. Commercial Advertiser Assn., 89 Hun, 24 [1895].) Offer to pay expense of adversary's witnesses.] How far the plaintiff will be allowed to retain the venue, where he offers to pay the expenses of bringing the defendant's witnesses to that county, considered. (Worthy v. Gilbert, 4 Johns. 492 [Sp. T. 1809]; Eathbone v. Harman, 4 Wend. 208 [Sp. T. 1830].) Stipulation that the witnesses will testify to the facts claimed.] A motion to change the venue on the ground of convenience of witnesses should not be denied because the opposing party stipulates that the witnesses named will testify to the facts claimed, as the stipulations, to be available for that purpose, must be to the effect that the facts sought to be established will be admitted on the trial. (Ingal v. Stoddard, 35 App. Div. 539 [189S].) Changed on condition that certain testimony be taken by deposition.] In an action brought in New York county to recover damages for the con- version of personal property alleged to have belonged to a decedent, residing in Clinton county at the time of his death, where all the transactions out of which the alleged cause of action arose occurred in Clinton county, a motion Eule 48] General Eules oe Peaotice. 331 was made by the defendant to change the place of trial to Clinton county on the ground of the convenience of witnesses. The plaintiff swore to six material witnesses residing in New York city, and the motion was denied. Held, that the defendant made out a case for a change of venue from New York to Clinton county; That the motion should have been granted upon condition that the defend- ant stipulated that the evidence of the witnesses residing in New York city be taken (if the plaintiff so elected) by deposition. (Dunham v. Parmenter, 74 Hun, 559 [1893].) Demand to change venue must accompany the answer — effect of de- fault in serving an answer.] Demand to change place of trial must accom- pany the answer under the Code of Civil Procedure, section 986, and the answer be served in time; and if a default be made in answering and be opened this does not retire the party in default in which he can insist on the change as a legal right. (Spaulding v. American Wood Board Co., 5 App. Div. 621 [1896].) May be changed to promote ends of justice.] But this is in the dis- cretion of the court. (Kavanaugh v. Mercantile Trust Co., 94 App. Div. 575.) GAME LAWS — Venue of action brought under the game laws.] Sec- tion 983 of the Code of Civil Procedure, providing that actions to recover a penalty or forfeiture imposed by statute must be brought in the county where the cause of action or some part thereof arose, has no application to actions brought under chap. 534 of the Laws of 1879 to recover penalties for violations of the game laws, which may be brought in the county where the penalty was incurred or in an adjoining cormty. (Leonard v. Ehrich, 40 Hun, 460 [1886].) EXCISE LAW — Power of Supreme Court to change the venue is not divested thereby.] The provisions of the Liquor Tax Law, authorizing the State commissioner to maintain an action in any court of record, in any county, for the recovery of the penalty for the breach of any condition of any bond, do not divest the Supreme Court of the power to change the place of trial, and such power may be exercised for the convenience of witnesses. (Lyman v. Gramercy Club, 28 App. Div. 30 [1898].) LACHES — Motion must be made with diligence.] A motion to change the place of trial for any reason must be made with reasonable diligence after issue has been joined in the action. (Darragh v. McKim, 2 Hun, 337 [1874] ; Haines v. Reynolds, 97 App. Div. 19.) Limit of time to move.] Section 980 of the Code of Civil Procedure limits defendant's time to move for a change of venue to the proper county, even when the answer is stricken out as frivoilous, and upon appeal the order is reversed. (Taylor v. Smith, 32 St. Rep. 843 [Sup. Ct 1890].) Removal of a cause from a local court to the Supreme Court.] After the lapse of seven years from the joining of issue, it is too late to change the place of trial from a local court to the Supreme Court for the convenience of witnesses. (Quinn v. Van Pelt, 12 Hun, 633 [-1878].) When denied for laches.] Where a motion was made, over one year after the joining of issue in an action, to change the place of trial thereof 333 Courts of Record. [Eule 48 for the convenience of witnesses, the defendant is chargeable with laches, and the motion is properly denied, and the fact that a whole year was consumed in fruitless attempts to change the venue upon other groundls is no excuse for the delay in making such motion. (Becker v. The Town of Cherry Creek, 77 Hun, 11 [1894].) The motion need not be made within ten days after a failure to con- sent.] A motion to change the place of trial on the ground of convenience of witnesses need not be made within ten days after .failure to consent thereto, as laid down in section 986 of the Code. (Kubiac v. Clement, 35 App. Div. 186 [1898].) A motion is too late after a stipulation fixing the time of trial.] After a defendant, as a condition of postponement, has stipulated to try the cause at a specified term, it is too late to moive for a change of venue. (Rodie v. Verdon, 22 Msc. Rep. 409 [1898].) WAIVER — Stipulating to accept short notice of trial is a waiver of objec- tions to the venue.] A defendant by giving a stipulation, upon receiving an extension lof time, that he will take short notice of trial for a certain circuit in the county in which the action was brought, waives the objection that the action had not been brought in the proper county. (Haiz v. Starin, 1 St. Rep. 553 [Sup. Ct. 1886].) RESIDENCE — By street and number and occupation should be stated.] The moving papers on a motion for a change of venue should, where the material witnesses are residents of a city, show their residence by street and number and also their occupations. (Dean v. Cunningham, 27 Misc. Rep. 31 [1899].) Wot necessary to state, other than county.] ^ATiere the affidavit states the county in which the witnesses reside, it is sufficient. It is unnecessary to specify the city, town or village. (Bleecker v. Smith, 37 How. Prac. 28 [Sp. T. 18&9].) County of residence — decision.] The motion to change the venue will be decided by the county in which the witnesses reside, and not by the dis- tances they will have to travel in order to come to the place of trial. (Hull V. Hull, 1 Hill, 671 [1841] ; People v. Wright, 5 How. Prac. 23 [Sp. T. 1850]; Beardsley v. Bickinaon, 4 id. 81 [Sp. T. 1848].) Residence in adjoining State.] The residence of a large number of wit- nesses, in an adjoining State is not a ground for retaining the place of trial in an adjacent county. (Peet v. Billings 2 Wend. 282 [1829]; Bank of St. Albans v. Knickerbocker, 6 id. 541 [1831].) Meaning of " resided " in section 984 of the Code of Civil Procedure.] The word resides means a permanent residence, one's home, as distinguished from a mere stopping place. It is nearly synonymous with " domicile." (Washington v. Thomas, 103 App. Div. 423.) MOTION — Where made.] A motion to change the place of trial for the convenience lof witnesses should be made in the judicial district designated in the complaint, or in a county adjoining it. (Bangs v. Selden, 13 How. Prac. 163 [Sp. T. 1850]; Askins v. Hearns, 3 Abb. 184.) EiUe 49] General Eules of Psactige. 333 CHANGED VENUE — Proper place to move to open a default.] Where the place of trial of an action brought by a judgment-creditor of a corporation to sequestrate its property was changed by order to another county, in whicli was its legal residence, a motion to open a default taken in the former county is properly made in the county to which venue had been removed. (CroU v. Empire State Knitting Co., 17 App. Div. 282 [1897].) AMENDED COMPLAINT — Place of trial cannot be changed in an amended complaint.] The summons and complaint designated Albany county as the place for trial, in which neither party resided. Defendant demanded that the place of trial he changed to Kings county, where it had its principa,l place of business. PlaintiflF thereupon served an amended complaint, designating Rens- selaer county, where he resided, as the place of trial. Held, that as the com- plaint could only be amended without prejudice to the proceedings already had, the amendment could not defeat defendant's application, which should be granted. (Rector v. Ridgewood Ice Company, 38 Hun, 293 [1885].) An amendment of pleading — changing place of trial — pending motion therefor.] An amendment of pleadings, of course, changing the place of trial, prevents the hearing in the original county of a pending motion to change the place of trial, on the ground that a fair and impartial trial cannot be had there, but the motion may be made in the county designated by the amendment. (Moulton V. Beeeher, 1 Abb. N. C. 193, 237 [Sup. Ct. 1876].) APPEAL — Order changing venue — appealability of, to General Term.] An order vacating an order of reference, and changing the place of trial, affects a substantial right, and is appealable to the General Term. The appeal is properly brought in the department in which the motion is made. (Hoflfman V. Sparling, 12 Hun, 83 [1877]; Code of Civil Procedure, § 989; contra, Kel- logg V. Smith, 7 Hun, 551 [1876] ; McDonald v. McDonald, 14 id. 490 [1878].) Decision of Special Term not disturbed on appeal.] The exercise of the discretion vested in the Special Term to change the place of trial of an action for the convenience of witnesses will not be disturbed upon appeal unless it clearly appears that such discretion was exercised improperly. (Payne V. Eureka Elec. Co., 88 Hun, 250 [1895].) Review of exercise of discretion on appeal.] Where the Special Term, in the exercise of its discretion grants a change of venue, it will not be inter- fered with unless it is clearly evident that the discretion was improperly exer- cised. (Payne v. Eureka Electric Co., 88 Hun, 250 [1895].) It is a matter largely in the discretion of the Special Term.] Motions to change the place of trial for the convenience of witnesses, are largely in the discretion of the Special Term, and its determination of such motions will not be reversed on appeal, unless it clearly appears that there was an abuse of that discretion, or that the court erred in coming to the conclusion it did. (Mc- Conihe v. Palmer, 75 Hra, 116 [1894].) KULE 49. Guardians ad Litem, Who to be. No person shall be appointed guardian ad litem, either on the application of the infant or otherwise, unless he be the general 334 Courts of Eecoed. [Eule 49 guardian of such infant, or is fully competent to understand and protect the rights of the infant, and has no interest adverse to that of the infant, and is not connected in business with the at- torney or counsel of the adverse party. And no person shall be appointed such guardian vi^ho is not of sufficient ability to answer to the infant for any damage which may be sustained by his negligence or misconduct in the defense or prosecution of the suit, and such ability shall be shown by affidavit stating facts in respect thereto. And no person shall be appointed guardian ad litem who is nominated by the adverse party. Rule 59 of 1858, amended. Rule 61 of 1871. Rule 61 of 1874, amended. Eule 52 of 1877. Rule 49 of 1880. Rule 49 of 1884, amended. Rule 49 of 1888. Rule 49 of 1896. CODE OF CIVIL PROCEDURE. § 428. Special guardian ad litem appointed for a defendant who is an infant, a lunatic, drunkard, etc. % 46'9. A guardian ad litem must be appointed for an infant plaintiff before the summons is issued. % 470. Application for the appointment of a guardian ad litem for infant plaintiff — notice to general guardian or person with "whom infant resides. § 471. Application for the appointment of a guardian ad litem for infant defendant — notice to general guardian of infant or person with whom he resides. § 472. Guardian, how appointed a consent necessary — clerk, when to act. § 473. Appointment of guardian ad litem for absent infant defendant. § 474. Guardian ad litem, not to receive property until security is given. § 475. What security required. § 476. The last two sections not applicable to general guardian who has been appointed guardian ad litem- — additional security may be required of him. § 477. Guardian ad litem for infant defendant not liable for costs — unless charged therewith by the court. § 1535. Of infant, in an action for partition. §' 1536. Bond required of a guardian in partition. § 1679. G'uardian of an infant party cannot purchase at a sale — exception. § 1820. Guardian ad litem in an infant's action for a legacy. § 2352. On application to sell, etc., infant's real estate. § 2509. Surrogate's clerk, or other person employed in surrogate's oflSoe not to act as guardian in that court. § 2527. When appointed in Surrogate's Court for persons incompetent to protect their rights. § 3249. Of plaintiff — liability of, for costs. Eule 49] Geneeal Eules of Peactice. 335 § 3251. Costs for procuring appointment of. § 3363. Guardian ad litem for infant or incompetent party to a condemna- tion proceeding. GUARDIAN AD LITEM — For plaintiff need not be his general guardian.] That part of Rule 53 of 1854, requiring the guardian ad litem " to be the gen- eral guardian, or an attorney or other officer of the court," does not apply to a guardian for the plaintiff. (Cook v. Rawdon, 6 How. Prac. 23 [Sp. T. 1851].) Appointment in violation of the rule.] An appointment in violation of Kule No. 49 of the Supreme Court will be set aside on the motion of any party or person interested. (Hecker v. Sexton, 43 Hun, 593 [1887].) Infant married woman.] Where the infant is a wife, her husband is usually appointed, unless his interest is adverse to hers. (Disbrow v. Folger, 5 Abb. 53 [Sp. T. 1857]. See, however, Cook v. Rawdon, 6 How. Prac. 233 [Chamb. 1851].) Guardian nominated by adverse party will be removed — power to appoint for nonresident infant.] Where the Supreme Court of the State of New York appoints a guardian ad litem nominated by the adverse party in express violation of Rule 49, the order appointing the guardian ad litem so nominated should be vacated and the general guardian of the infant may make such a motion. Where an infant defendant, a resident of New Jersey, is, in this State, served with an order to show cause why a guardian ad litem should not be appointed to represent her in a special proceeding, the Supreme Court has the power upon the failure of the infant to apply for the appointment of a guard- ian ad litem prior to the return day, to appoint Buch a guardian ad litem. (Matter of Cutting, No. 1, 38 App. Div. 247 [1899].) When irregularity in appointment of guardian ad litem will vacate proceedings thereon.] An order permitting a trustee to resign his trust and appointing a referee to state his accounts, should be reversed where it appears that the guardian ad litem representing the benefieiary of the trust, who was a nonresident infant over the age • of fourteen years, was nominated by the adverse party, and that his appointment was, therefore, irregular under Rule 49. (Matter of Cutting, No. 2, 38 App. Div. 252 [1899].) When irregularity in appointment of guardian will relieve purchaser under a judgment in partition.] A purchaser at a sale under a judgment in partition, will be relieved where it appears that guardians ad litem for infant defendants were connected in business with the attorney for adverse parties. (Parish v. Parish, 77 App. Div. 267.) When necessary.] A guardian must be appointed where a creditor applies for payment from a fund in court in which an infant is interested. (Matter of Howe, 2 Edw. 484 [1835].) Who to be appointed.] A person who is most likely to fully protect the rights of the infant is the one who should be appointed guardian. (Grant v. Van Schoonhoven, 9 Paige, 255 [1841].) 336 CoTJETs OF Recoed. [Rule 49 ■ Appointment vacated.] The appointment of a guardian ad litem, nom- inated by the adverse party in a special proceeding, will be vacated. (Matter of Cutting, 38 App. Div. 247 [1899].) The guardian himself must be of full age.] (Kellogg vi Klock, 2 Code E. 28 [Sp. T. 1849].) Guardian, who has appeared, must answer.] A guardian who has appeared must put in an answer for the infant. (Farmers' Loan & Trust Co. T. Eeid, 3 Edw. 414 [1840].) Removal of.] Where the court clearly discovers that the interests of infnnts are committed to a guardian who is not likely to protect them, he should be removed and a proper one appointed. (Litchfield v. Burwell, 5 How. Prac. 341 [Sp. T. 1850].) Cannot settle an action.] A guardian ad litem has power only to prosecute an action in which he has been appointed, and cannot settle the same unless authorized by the court; and his authority is limited to the subject-matter of that action. He has no general authority to bind the infant or his estate. (Christ v. Chetwood, 1 Misc. Rep. 418 [N. Y. City Ct. 1892] ; Edsall V. Vandemark, 39 Barb. 589 [Gen. T. 1863].) Allowance of costs to.] Costs may be allowed to a special guardian unsuccessfully contesting the probate of a will, but limited by and only as specified in the Code of Civil Procedure (§§ 2558-2561). (In re Budlong, 33 Hun, 235 [1886].) An allowance to a guardian on an ex parte application — improper.] A surrogate cannot grant an allowance to a special guardian upon his ex parte application therefor. The provision as to costs and allowances should be in- serted in the decree. (Matter of Budlong, 33 Hun, 235 [1884].) Power of the court to provide for the compensation of a special guard- ian.] The power of the court to award to the guardian of an infant, to be paid out of the subject-matter of the action, such a compensation as appears to be reasonable for the services he has performed, is inherent in it and does not depend upon the provision of the Code of Civil Procedure, nor is it to be included in or limited by the sum of $2,000 fixed by section 3254 of the said Code as the limit of allowance. ( Weed v. Paine, 31 Hun, 10 [1883].) Right of guardian to recover compensation from the father.] A guard- ian ad litem is not entitled to recover his compensation from the father of infant children under an agreement with him, where in an action in which the father's interest is not identical with that of his children such guardian appears. (Thorn v. Beard, 39 St. Rep. 30 [Sup. Ct. 1891].) Disbursements of a brother appointed guardian ad litem before ap- pointment.] A brother appointed guardian ad litem of an infant girl, in proceedings for the sale of an interest in property owned by tliem in common, should be credited with the amount expended by him for her support before his appointment. (Hovell v. Noll, 10 Misc. Rep. 546 [1894].) Where no guardian has been appointed the complaint should be dis- missed.] Where it appears for the first time upon the cross-examination of plaintiff as a witness that plaintiff is an infant, and that no guardian ad litem has been appointed, a dismissal of the complaint is proper, and the court has no authority to deny an application for such dismissal and allow plaintiff to Rule 49] General Eules of Practice. 337 file a petition for a guardian ad litem, nunc pro lunc. (Imhoff v. Wurtz, Civ. Proc. R. 48 [Erie County Ct. 1886]. See, however, Smart v. Haring, 14 Hun, 276.) Failure to appoint a guardian in proceedings for the sale of land to pay debts does not deprive the court of jurisdiction.] Sale of real estate to pay the debts of a deceased person. The failure to appoint a guardian for an infant does not deprive the Surrogate's Coui-t of jurisdiction. (Jenkins v. Young, 43 Hun, 194 [1887].) Failure to appoint a guardian for an infant plaintiff in an action does not deprive the court of jurisdiction of the action.] Upon the trial of this action the defendant first learned, from the cross-examination of the plaintifi', that at the time the action was commenced she was a, minor, although she had become of age before the time of the trial. Heidi tlisut the omission to appoint a guardian for her did not afi'ect the jurisdiction of the court, and that a motion to dismiss the complaint was properly denied. (Sims v. New York College of Dentistry, 35 Hun, 344 [1885].) Failure to appoint a guardian ad litem is an irregularity necessitating reversal] Failure to appoint a guardian ad litem for an infant defendant is an irregularity for which judgment entered against him must be reversed. (Frost V. Frost, 15 Misc. Rep. 167 [1895] ; judgment modified in 16 id. 430.) The defendant may raise the objection on appeal to the Coimty Court without the interposition of a guardian ad litem, (lb-) Infant legularly represented is concluded like any other party.] An adjudication made in proceedings to which an infant regularly represented in accordance with the practice of the court is a party, has the same effect as a similar adjudication between adults. (Matter of Hawley, 100 N. Y. 206 [1885].) Infant who contests a will by guardian does not forfeit her interest under the wiU.] In a proceeding instituted for the probate of a will in which an infant is a party, such infant will be bound by the adjudication therein made, and in the event of a contest made on behalf of such infant by his guardian ad litem, the contest is not such an act of the infant as will forfeit the benefit to him under the will in a elause revoking provisions in favor of any beneficiary who should contest the probate thereof. (Bryant v. Tracey, 27 Abb. jST. C. 183 [Sup. Ct. 1891].) Clerk of court must give security as guardian.] If the clerk of the court is appointed guardian ad litem for an infant defendant in an action of partition, he must give security. (Fisher v. Lyon, 34 Hun, 183 [1884].) Guardian cannot enforce money judgment until security is given.] Where the plaintiff' in an action by a guardian ad litem recovers a money judgment, the guardian must give the security required by section 474 of the Code of Civil Procedure and Rule 51 of the General Rules of Practice before the judgment can be enforced. (Wileman v. Met. St. R. Co., 80 App. Div. 53 [1903].) Liable for costs.] The guardian ad litem for an infant plaintiff is liable for costs, though the Code does not require him to file security therefor. (Code of Civil Procedure, § 3249.) 22 338 CouETs OF Recoed. [Rule 49 Guardian ad litem for defendant is not. (Code of Civil Procedure, § 477.) Waiver of right to security for costs.] The absolute right of a defend- ant to require an infant plaintiff to give security for costs where his guard- ian ad litem has given none is waived unless it is asserted before answer. (Dwyer v. McLaughlin, 27 Misc. Rep. 187 [1899].) Attachment for costs.] The defendant, if successful, is entitled to an attachment against the person of the guardian for his costs. {Wice v. Com- mercial Fife Ins. Co., 8 Daly, 70 [1877] ; Schoou v. Schlessinger, 7 Abb. N. C. 399 [Sp. T. 1879].) Liability of a plaintiff for the costs and disbursements of a guardian ad litem.] Where a sale under a judgment of foreclosure has resulted in a deficiency, services rendered by a guardian ad litem for an infant defendant are for the infant's benefit, and the fact that the plaintiff in a foreclosure suit has requested such services will not make him liable personally for the costs and disbursements of the guardian ad litem which it has been adjudged should be paid out of the proceeds of the sale. (Hill v. Lee, 4 App. Div. 154 [1896].) Punished.] A guardian who fails to protect the interests of the infant will be punished. (Knickerboclcer v. Defreest, 2 Paige, 304 [1830].) For an infant beneficiary of a trust residing in New Jersey.] The Supreme Court has power to appoint a guardian ofl! litem of an infant bene- fioiai-y of a trust, over the age of fourteen, residing in New Jersey but served in New York with an order in a special proceeding by the trustee to obtain a discharge from his trust, requiring the infant to show cause why a guard- ian ad litem should not be appointed to represent her in the proceeding, where the infant fails to apply. (Matter of Cutting, 38 App. Div. 247 [1899].) Purchase by a guardian ad litem of an infant's interest in property — presumption against its fairness.] A purchase of an infant's interest by the guardian ad litem in partition raises a presumption that it was made in the individual interest of the guardian, and the burden is upon the latter to show that the purchase is not one prohibited by statute; unless it is shown to have been made for the benefit of the infant the sale is void, though con- firmed by an order entered in the partition suit. (O'Donoghue v. Boies, 92 Hun, 3 [1895].) Who may apply for the appointment.] An application to appoint a guardian ad litem may be made by a general guardian appointed in another State. (Freund v. Washburn, 17 Hun, 543 [1879].). Petition for appointment of a guardian, addressed to county judge, but entitled and entered as an order of the County Court.] Where a petition for the appointment of a guardian ad litem for an infant plaintiff is addressed to the county judge, but the order of appointment, signed by the comity judge, is entitled and entered as a County Court order, the order is valid as an order of the county judge. (Albrecht v. Canfield, 92 Hun, 240 [1895].) Application for appointment made too soon.] The infants were per- sonally served out of the State, under the order of publication, on October 31 anil November 1, 1890. The appIicatio]i for appointment of guardian Eule 50] Geneeal Rules of Peactice. 339 ad litem on behalf of three of the infants -was granted December 8, 1890, and for another March 10, 1891. Held, that aa under the provisions of the Code (§§ 441, 471) the infant defendants could not make such an application until forty-two days had elapsed from the time when personal service was made, the court acquired no jurisdiction to make the appointment of guardian for the three infants; that they were not competent to waive, by any affirmative act, the restrictive provisions of the statute, and so, that an appearance by the guardian was not an appearance by the infants. (Crouter v. Crouter, 133 N. y. 53 [1892].) Only after service of summons.] A guardian ad litem for an infant defendant can only be appointed after the service of the summons. (Inger- soll V. Mangam, 84 N. Y. 622 [1881]; Code Civil Procedure, § 471.) Otherwise in an action for partition.] (See Gotendorf v. Goldschmidt, 83 N. Y. 110 [1880]; Wood v. Martin, 66 Barb. 241 [Sp. T. 1873].) Waiver of defects of service by a guardian ad litem.] An appearance and answer by a guardian ad litem is not a waiver of defects in the service of the summons. (Bingham v. Bingham, 3 How. Prac. [N. S.] 166 [Sup. Ct. Sp. T. 1884].) Effect of the infant's arriving at full age pending the suit.] (Smart v. Harring, 14 Hun, 276 [1878]; Breese v. Metropolitan Life Ina. Co., 37 App. Div. 152 [1899].) Compensation of.] In proceeding for discharge of teatamentary trus- tees, where there is a question whether infant party has any interest in the corpus of trust fund, the compensation of the guardian ad litem limited to taxed costs. (Matter of Pitney, 186 N. Y. 540.) Who should bring action.] Where cause of action exists in favor of infant, action should be brought by guardian ad litem and not by general guardian, unless general guardian is entitled to sue as trustee of express trust. (Schlieder v. Dexter, 114 App. Div. 417.) ETJIE 50. Guardian ad Litem, Duties of — What Affidavit Hequired to Entitle a Guardian to Compensation. It shall be the duty of every attorney or officer of the court to act as the guardian of any infant defendant, in any suit or pro- ceedings against him, whenever appointed for that purpose by an order of this court. And it shall be the duty of such guardian to examine into the circumstances of the case, so far as to enable him to make the proper defense, when necessary for the protec- tion of the rights of the infant; and he shall be entitled to such compensation for his services as the court may deem reasonable. But no order allowing compensation to guardians ad litem shall be made, except upon an affidavit to be made by such giiardian, 340 CouETS OF Eecoed. [Rule 51 if an attorney of the court, or if tte guardian be not an attorney, then an affidavit to be made by an attorney of the court who has acted in the matter in behalf of such guardian, showing that he has examined into the circumstances of the ease, and has, to the best of his ability, made himself acquainted with the rights of his ward, and that such guardian has taken all the steps neces- sary for the protection of such rights, to the best of his knowledge, and as he believes, stating what has been done by him for the purpose of ascertaining the rights of the ward. Rule 61 of 1838, amended. Rule 62 of 1871. Rule 62 of 1874. Rule 53 of 1S77. Rule 50 of 1880. Rule 50 of 1884. Rule 50 of 1888. Rule 50 of 1896. See notes under Rule 49. RUIE 51. Guardian, Bond of, Before Receiving Property. No guardian ad litem for an infant party shall, as such guardian, receive any money or property belonging to such in- fant, or which may be awarded to him in the suit (except such costs and expenses as may be allowed by the court to the guardian), unless he has given an undertaking executed by a surety company authorized to do business in this State, in double the amount of such money or property, or a bond secured by a mortgage on improved and unincumbered real property. jSTeither shall the general guardian of an infant receive any part of the proceeds of a sale of real property belonging to an infant sold under a decree, judgment or order of the court until the guardian has given such further security for the faithful discharge of his trust as the court may direct. In case, how- ever, such proceeds shall exceed the sum of five hundred dollars the court shall require the guardian to give a bond, in the penalty of double the amount to be paid to the guardian, such bond to be that of a surety company authorized to do business in this State or secured by mortgage on improved and unincumbered real property worth the amount of the penalty of the bond. Rule 62 of 1858. Rule 63 of 1871. Rule 63 of 1874. Rule 54 of 1877. Rule 51 of 1880. Rule 51 of 1884. Rule 51 of 1888. Rule 51 of 1896. Rule 51, amended, 1910. See notes under Rule 49. Rule 52] Geneeal Rules of Peactige. 341 EULE 52. Appointment of General Guardian — Petition for. Except in eases otherwise provided for by law, for the purpose of having a general guardian appointed, the infant, if of the age of fourteen years or upward, or some relative or friend, if the in- fant is under fourteen, may present a petition to the court, stat- ing the age and residence of the infant, and the name and resi- dence of the person proposed or nominated as guardian, and the relationship, if any, which such person bears to the infant, and the nature, situation and value of the infant's estate. Rule 63 of 1858. Rule 64 of 1871. Rule 64 of 1874. Rule 55 of 1877, amended. Rule 52 of 1880. Rule 52 of 1884. Rule 52 of 1888. Rule 52 of 1896. CODE OF CIVIL PROCEDURE. § 1563. Action for waste by ward, against his guardian. I 1679. Guardian of an infant defendant not to purchase at sale — exception. § 1590. General guardian of infant may apply for autliority to agree to partition. § 2410. General guardian of infant may apply to have infant's name changed. SI 2821-2841. Appointment, removal and resignation of a general guardian. § 2842, etc. Guardian must file annual inventory and account — proceedings thereon, etc. §& 2851-2860. Guardians appointed by will or deed. GUARDIANSHIP — Who entitled to.] Persons entitled to the guardian- ship in socage of infants owning lands. (See l^awa of 1896, chap. 272, § 50.) Right of a surviving parent to nominate a guardian by will or deed. (See Laws of 1896, chap. 272, § 51.) Trust company appointed where both parents are dead.] Where both parents of a cliild eleven years old are dead, a trust company, instead of her maternal grandmother, may be appointed guardian of the infant's person and estate. (Matter of Beebe, 33 St. Rep. 999 [Sup. Ct. 1890].) A nonresident alien cannot be general guardian.] A nonresident alien named as a guardian in the will of a resident is not entitled to have letters of guardianship issued to him. (Matter of Zeller, 25 Misc. Rep. 137 [1898].) For a nonresident.] The Supreme Court cannot appoint a guardian for an infant who does not reside in this State and who lias no property tlierein. (In the Matter of Hubbard, 82 N. Y. 90 [1880].) What to be stated in the application.] The petition for the appoint- ment should show which of the relatives of the infant reside in the county. (Matter of Feeley, Redf. 300 [1880]; Code of Civil Procedure, § 2822.) Powers of Surrogates' Courts over.] The nature and extent of the jmisdietion ot Surrogates' Couj-ts over testamentary guardians considered. (In re Hawley, 104 N. Y. 250 [1887].) 3i2' CouETS OF Eecoed. [Eule 52 Appointment of, in Surrogate's Court — when notice unnecessary.] Appointment of a guardian for an infant in a Surrogate's Court — no notice is required if the infant be present and consent. (Matter of Seabra, 38 Hun, 218 [1885].) As to the surrogate's powers. (Matter of Hosford, 2 Eedf. 168 [1877] ; Code of Civil Procedure, §§ 2821, 2822.) Removal of guardian — surrogate may compel account.] Under section 2603 of tlie Code oif Civil Procedure, the surrogate may require a guardian to account and pay over in proceedings talien for his removal. (Phillips v. Lieb- mann, 10 App. Div. 128 [1890].) When the appointment will be reversed.] Where the surrogate errs in neglecting to make proper inquiries upon an application to appoint a guard- ian or in omitting to direct proper notices to be given to such of the relatives as, in the exercise of a sound discretion, he ought to have notified, his deci- sion will be reversed on appeal. (White v. Pomeroy, 7 Barb. 640 [Gen. T. 1850]; Holley v. Chamberlain, 1 P.edf. 333-336 [I860].) Jurisdiction of the Supreme Court over minors.] The jurisdiction of the Supreme Court over the persons and estates of infants, without regard to their age, is not limited by section 2827 of the Code, conferring concurrent jurisdiction on the Surrogate's Court, nor by Rule 52 of the General Rules of Practice designating tiie person who may present a petition for the appoint- ment of a general guardian of an infant. (Matter of White, 40 App. Div. 165 [1899].) Powers of Supreme Court over.] The jurisdiction of the Supreme Court over the persons and estates of infants, without regard to their age, is hot limited by section 2827 of the Code of Civil Procedure conferring concur- rent jurisdiction on the Surrogate's Court, nor by Rule 52 designating the person who may present a petition for the appointment of a general guardian for an infant. (Matter of White, 40 App. Div. 165 [1899].) When appointment may be revoked.] Where the Supreme Court, upon the application of an infant over the age of fourteen years, has appointed the father of the infajit guardian of hia person and estate, it has power upon application of a corporation, a former temporary guardian of the person and estate of the infant, and upon notice to the infant and to the father, to revoke the appointment of the father as guardian and to appoint the corpora tion, the former temporary guardian, in his place, notwithstanding the fact that the infant asserts that he will not consent to the appointment of any person other than his father as guardian. (Matter of White, 40 App. Div. 165 [1899].) Powers of Supreme Court — proceeding by petition.] Proceedings for the removal of a guardian may be commenced by a petition. The Supreme Court has power to remove a testamentary guardian. (Matter of King, 42 Hun, 607 [1886].) Removal of guardian.] An action cannot be brouglit in the Supreme Court to remove a guardian appointed by a siurogate. (Dutton v. Dutton, 8 How. Prae. 99 [Sp. T. 1S52].) Right to employ counsel.] The widowed mother of an infant who owns real estate is entitled to the possession of such real estate as general Eule 52] General Eules of Peactice. 343 guardian with the rights, etc., of a guardian in socage, and has the right to employ counsel and to make a contract for his compensation. (Matter of Hynes, 105 N. Y. 5G0 [1887]). Liability of the guardian and of an attorney to pay counsel under such circumstances. (76.) Liability of sureties on a bond of a general guardian.] Where a gen- eral gu-ardian became insolvent, removed to another State and died there, no representative of his estate being appointed, and a mortgage given by him to indemnify his bondsmen vi^as foreclosed and the proceeds realized were paid into a trust company to the joint account of the guardian and the bondsmen, after which the trust company became insolvent and the fund was lost, held, that the moneys received by the guardian as such not having been so depos- ited, the sureties on his bond were not exonerated from liability; and that the court, in an action against them on the bond, could determine the liability of the guardian and enforce the obligation of the sureties on the bond. (Otto v. Van Riper, 31 App. Div. 278 [189S].) When and in whose name suit should be brought against the sureties upon a general guardian's bond.] Action against sureties upon a general guardian's bond. Question as to whether it should be brought in the name of infant or of the guardian. When action will lie against the sureties on a bond before an accounting has been had by the guardian. (Perkins v. Stim- mel, 42 Him, 520 [1880].) Surrogate's decree conclusive against a guardian's sureties.] The sure- ties of a general guardian are, in the absence of fraud, concluded by the decree of the Surrogate's Court, entered upon the accoimting of the executrix of the guardian, as to the amount due from his estate to the ward. (Martin V. Hann, 32 App. Div. 602 [1898].) Liability of sureties where a guardian has misappropriated funds.] Where the obligation as administrator to pay and the right and duty to receive as guardian are united in the same person, he becomes chargeable in the latter capacity and his sureties are liable if, prior to his appointment as guardian, he has misappropriated and converted to his own use the moneys received by him as administrator to which his ward was entitled. (Matter of Noll, 10 App. Div. 356 [1896].) Sureties liable for costs awarded against a guardian by the surrogate.] The costs awarded against a guardian on a decree of the surrogate removing him are an inherent part of the decree, and the sureties of the guardian are as much liable for their payment as for that of any other money which he is adjudged to pay. (Phillips v. Liebmann, 10 App. Div. 128 [1896].) Allowance to guardian for necessaries furnished by him before his appointment.] Allowances may be made to a guardian for necessaries fur- nished by him to the infant before the issue of letters of guardianship. (Matter of Miller, 34 Hun, 267 [1884].) Guardian to apply only income to his ward's support.] A guardian should not apply more than the income of the fund held for his ward to the latter's support, although there are exceptions to this rule. (Matter of Wan- dell, 32 Hun, 545 [1884].) Purchase by a guardian of his ward's lands — bad.] A purchase by a special guardian of the ward's land is presumptively fraudulent. (People 344 CouETs OF Eecoed. [Rule 52 V. The Globe Mutual Life Ins. Co., 33 Hun, 393 [1884] ; Code Civil Procedure, § 1679.; Purchase of a ward's property by a guardian at a foreclosure sale.] The common-law rule prohibiting the purchase by a guardian of his ward's property at a foreclosure sale had before 1877 was enforcible only in equity, and did not support an action of ejectment by the ward. (Dugan v. Denyse, 13 App. Div. 214 [1897].) He has no authority to carry on business in the name of his ward. (Warren v. Bank of Eochester, 157 N. Y. 2.59 [1898].) Real estate purchased by a guardian under an order of the surrogate.] Heal estate purchased by the guardian of an infant under an order of the Surrogate's Court granted upon petition will, upon the death of the infant before majority, descend as personal and not as real property. (Matter of Bolton, 20 Misc. Rep. 532 [1897].) The guardian of an infant has no inherent power as such to invest the personal property of the infant in real estate. (/6.) A surrogate cannot authorize such purchase.] The Surrogate's Court is without jurisdiction to authorize a guardian to purchase real estate for an infant with the infant's personal property. (lb.) Election by a sole legatee to accept the land instead of the personal property.] When the guardian of an infant has purchased real estate under an order granted upon petition by the Surrogate's Court, and the infant has died leaving a will bequeathing all her property and estate to her husband, the husband, as sole legatee, may elect to accept the land instead of requiring the guardian to account for the funds used in its purchase; and if he so elects a decree should be made directing the guardian to convey the property to him. (IJ>.) Where a widow in good faith purchases property which has been owned by her husband on its sale on foreclosure, though she is at the time a guardian in socage of his children, the sale is not void, but the title vests in her subject to being impressed with a trust in favor of the children, enforcible only upon the performance of the conditions which equity should impose. (O'Brien v. General Synod of Reformed Church, 10 App. Div. 605 [1896]. See, also, Greagan v. Buchanan, 15 Mise. Rep. 580 [1895].) General guardian — he may collect and sue for his ward's share of rent collected from premises owned in part by his ward.] A general guardian of an infant may maintain an action to recover one-half of the rent of certain premises owned by the infant and the defendant as tenants in common, the entire rents of which had been collected and received by the defendant. (Coakley v. Mahar, 30 Hun, 157 [1885].) Right of infant to be brought up in religious faith of father.] Letters of guardianship revoked in order that ward might be brought up in the religious faith of its deceased father. (Matter of McConnon, 60 Misc. Rep. 22; Matter of Crickard, 52 id. 63.) Right of mother.] Since the enactment of the Domestic Relations Law it is obligatory upon the suiTOgate to give the mother notice of appli- cation for the appointment of a guardian for infant child. (Matter of Drowne, 56 Misc. Rep. 417.) Enle 53} General Rules of Practice. 345 Fatiier of infant preferrej.] Surrogate will appoint father guardian unless he is shown to be unfit. (Matter of Tully Infants, 54 Misc. Rep. 184.) Provision in will of mother appointing testamentary guardian for child whose father is living, held ineffectual during lifetime of father. (Matter of Wal- ker, 54 Misc. Rep. 177.) Rights of mother of infant.] Husband's attempt by will to dispose of guardianship of his minor children, to the exclusion of mother, held void. (Matter of Kellogg, 110 App. Div. 472.) Accounting.] Although no order was previously obtained, upon judi- cial settlement of guardian's accounts allowance may be made on account of advancements for support and maintenance of ward. (Matter of Putney, 61 Misc. Rep. 1.) Guardian who advances money to protect ward's real estate from fore- closure aOowed interest on siuns advanced, but charged with interest on rents he had collected in his own name. (MeCormick v. Shannon, 127 App. Div. 745.) Compensation.] Claim of guardian for moneys paid to attorney for legal services in prosecuting claim in favor of ward before his appointment, disallowed. (Matter of Tyndall, 48 Misc. Rep. 39.) Powers of guardian to impose restrictions upon ward's property.] Neither an executor (unless so authorized by the will) nor a general guardian has power by an independent contract to impose restrictions upon an infant's property and impair Ms estate by a mere covenant against use for the bene- fit of a stranger. (Curry v. lieil, 19 App. Div. 375 [1897].) Negligence — v/hat is not culpable negligence in a general guardian.] The failure of the general guardian of an infant legatee to institute proceed- ings to compel the payment of the legacy, where the estate is sulEeient and the executor is known or believed to be solvent, is not of itself such culpable neglect as will prevent a recovery on behalf of such infant in an action brought to compel the residuary legatee to refund moneys prematurely paid to him. (Buffalo Loan, Trust, etc., Co. v. Leonard, 154 N. Y. 141 [1897].) PAYMENT — Of money to general guardian.] See Rule 59. RTILE 53. Court to Ascertain the Age of Infant and Amount of Property, etc. Upon presenting the petition, the court shall, by inspection or otherwise, ascertain the age of the infant, and if of the age of fourteen years or upward, shall examine him as to his voluntary nomination of a suitable and proper person as guardian ; if under fourteen, shall ascertain who is entitled to the guardianship, and shall name a competent and proper person as guardian. The court shall also ascertain the amount of the personal property, and the gross amount of value of the rents and profits of the real 340 CouETs OF Recoed. [Rule 54 estate of the infant during his minority, and shall also ascertain the sufficiency of the security offered by the guardian. Rule 64 of 1858. Rule 65 of 1871. Rule 65 of 1874. Rule 56 of 1877. Rule 53 of 1880. Rule 5.3 of 1884. Rule 53 of 1888. Rule 53 of 1896. See notes under Rule 52. RULE 54. Bond of a General Guardian. The security to be given by the general guardian of an infant shall be a bond in the penalty of double the amount of the per- sonal estate of his ward and of a gross amount or value of the rents or profits of the real estate during his minority. The bond shall be executed by the guardian, together with at least two sufficient sureties, each of whom shall be worth the amount specified in the penalty of the bond over and above all debts. If, however, the total amount of the personal estate of an infant and of the gross amount or value of the rents or profits of the real estate during his minority shall exceed twenty-five hundred dollars, then the bond must be the bond of a surety company authorized to do business in this State, or the general guardian may give a bond secured by a mortgage on improved and unen- cumbered real property of the value of the penalty of the bond. The coiirt in its discretion may vary the security where from special circumstances it may be found for the interest of the in- fant, and may direct the principal of the estate and any part thereof to be invested in the stocks of the State of Kew York or of the United States, or deposited with any trust company which shall have been designated as a depository for such moneys, or invested in bond and mortgage on unencumbered and improved property of at least double the value of the amount invested, to be shown to the satisfaction of the covirt, for the benefit of the infants, and that the interest or income thereof only be received by the guardian. Rule 65 of 1858, amended. Rule 66 of 1871, amended. Rule 66 of 1874, amended. Rule 57 of 1877. Rule 54 of 1880. Rule 54 of 1884. Rule 54 of 1888, amended. Rule 54 of 1896. Rule 54, amended, 1910. See notes under Rules 49 and 52. Kule 55] Geneeal Eules of Peactice. 347 CODE OF CIVIL PROCEDURE. § 744. Comptroller to prescribe rules and regulations relative to the care and disposition of moneys paid into court which shall be binding in the absence of special directions by the court into which the money was paid. § 745. Money paid into court (unless it be otherwise directed) to be paid to the county treasurer and securities taken in his name. § 746. Money paid into court — where and how deposited or invested. § 747. Moneys paid into court — each court may make special directions as to the disposition and investment thereof. § 749. Power of certain officers to bring actions relating to money held in a representative character. §§ 810-816. General regulations respecting bonds and imdertakings. NEW YORK LIFE INSURANCE AND TRUST COMPANY — Section 3 of chapter 75 of the Laws of 1830 authorizes the said company to be appointed guardian of any-infant, the annual income of whose estate exceeds $100. UNITED STATES TRUST COMPANY — Section 3 of chapter 204, Laws of 1853, confers a similar authority upon this company. TRUST COMPANIES — Appointment of, as guardian.] (See section 157 of chapter 689 of the Laws of 1892.) GENERAL GUARDIAN — Appointment of.] (See notes under Rule 52.) Liability of sureties.] Held to be no defense to action against sure- ties on bond of guardian for money lost through improper investments that when bond was given guardian falsely represented to defendants that bonds in which money was invested was good. (Rouse v. Whitney, 53 Misc. Rep. 56.) Discharge of surety on bond of guardian no longer rests in the discre- tion of the court, but he is entitled to it as a matter of right. (Matter of Am. Surety Co., 61 Misc. Rep. 542.) Powers of county treasurer same as other trustees. (Tompkins Co. v. IngersoU, 81 App. Div. 344.) EULE 55. Petition for Sale of Real Estate of Infants, Lunatics, etc. — What to State — Previous Application. The petition in proceedings to sell, mortgage or lease real estate belonging to an infant or lunatic, idiot or habitual drunk- ard, shall state, besides the particular grounds for a sale, mort- gage or lease of the property, and the other matters required by the Code, the age and residence of the infant, lunatic, idiot or habitual drunkard, and the name and residence of the person proposed as a special guardian or committee, the relationship, if any, which he bears to the infant, lunatic, idiot or habitual 348 CouETs OF Ejecoed. [Eule 55 drunkard, and the security proposed to be given; and also whether any previous application has been made, and, if so, the time thereof, and what disposition was made of the same. Rule 58 of 1858. Rule 67 of 1871, amended. Rule 67 of 1874. Rule 58 of 1877, amended. Rule 56 of 1884. Rule 55 of 1888. Rule 55 of 1896. CODE OF CIVIL PROCEDURE. § 340. Jurisdiction of County Court over the person and estates of incom- petents. §§ 2345-2364. Proceedings for the disposition of the real property of an in- fant, lun-atic, idiot or habitual drunkard. SALE — Power of the court to direct.] The power of the court to order the sale of real estate belonging to an infant is derived entirely from the statute. (Horton v. McCoy, 47 N. Y. 2il-2G [1871}; Losey v. Stanley, 147 id. 560 [1895]; Onderdonk v. llott, 34 Barb. 106 [Gen. T. 1861]; Baker v. Lorillard, 4 N. Y. 257 [1850] ; Rogers r. Dill, 6 Hill, 415 [1844] ; Muller t. Struppman, 6 Abb. N-. C. 343 [Sp. T. 1878].) A mortgage given to pay the debt of another — the court is without jurisdiction to order it.] Where the petition and proofs show, without dis- pute, that the sole purpose of tlie proceeding is to mortgage tlie property of an infant to pay the debt of another, and there is no proof or claim that his prop- erty is not sufficient to pay all of his own debts and for his necessary educa- tion, the court does not acquire Jurisdiction. (Warren v. Union Bank of Rochester, 157 N. Y. 529, revg. 28 App. Div. 7 [189S].) Power of the legislatnre to order a sale of infant's land.] It is within the power of the Legislature by special act to authorize a sale of an infant's lands, including the future contingent interests of those not in being. (Ebling T. Dreyer, 149 N. Y. 460 [1896].) Power of the court over the proceedings — continues during minority.] On the sale of an infant's interest in real property, the court has control of the proceedings until tlie infant arrives at maturity and tlie money has been paid over to him, and can correct any irregularities and mistakes so as to pro- tect a party likely, innocently, to suffer thereby. (Applied to case where the interest of the infant was one-third and the sale was of a one-half interest in the land.) (Matter of Price, 67 X. Y. 231 [1877].) Povrers of.] A guardian is not permitted to invest personal property of an infant in real estate without an order of the Supreme Court. (Manahan V. Holmes, 58 Misc. Rep. 86.) — — ^A general guardian cannot bind the ward's person or property unless expressly authorized by statute. (Aborn v. Janis, 62 Misc. Rep. 95.) Sale contrary to the statute — void.] A sale made contrary to the provisions of the statute is utterly void and passes no title to the purchaser. (Rogers v. Dill, 6 Hill, 415; Matter of Turner, 10 Barb. 5.52 [Sp. T. 1851].) Noncompliance with the rule — does not invalidate the sale.] The rule of the Court of Chancery (Rule 158) requiring an infant to join when he is Rule 55] Geneeal Eules of Practice. 349 over fourteen years of age, was a mere regulation of practice, which the court had power to waive, and did not affect the jurisdiction, nor did its violation invalidate the sale. (Cole v. Gouxlay, 79 N. Y. 527 [1880]. See, however. Code Civ. Proc, § 2349.) Possession in fact or law — not necessary to authorize.] Under the statute providing for the siiie of the interest of an infant in real estate, a sale can be ordered in those ca^es in which the infant is not in the actual posses- sion of the land, nor entitled to the immediate possession thereof. (Jenkins v. Fahey, 73 N. Y. 355 [1878].) Of equitable estates.] Courts of equity have inherent iurisdiction, independent of the statute, to or-der the sale of equitable estates of infants. (Wood v. Mather, 38 Barb. 475 [Gen. T. 1862].) Expectant estates and estates in remainder.] Can be sold thereunder. (Jenkins v. Fahey, 73 K. 1^ 355, reversing 11 Hun, 351 [1877]; Matter of Haight, 14 id. 176 [1878].) Contingent interest of an infant cannot be sold under the statute.] The contingent interest of an infant under a devise conditioned upon the re- marriage of her mother, to whom the primary estate is devised, is not an estate which can be sold under the statute. {Matter of Dodge, 40 Hun, 443 [18SG].) Estate of infant trustees.] Proceedings for transferring the title of infant trustees under the Revised Statutes (article concerning the sale of in- fants' estates), are not affected by the one- hundred and seventy-sixth section of the article. That section applies only to the sale of infants' estates held in their own right. (Wood v. Mather, 38 Barb. 473 [Gen. T. 1862].) APPLICATION — By whom made.] The application must be made by the petition of the general guardian or the guardian of the property of the infant; OT by the committee of the property of the lunatic or other incompetent per- son, or by any relative or other person in behalf of either. Where the appli- cation is in behalf of an infant of the age of fourteen years or upwards, the infant must join therein. Where the application is made to the Supreme Court the petition must be presented at a term held within the judicial district in which the property or a part thereof is situated. (Code Civ. Proc, § 2349.) Corroborating affidavits and petition by general guardian — may be dispensed with.] The court has power to dispense with the provision of the rule requiring corroborating affidavits and with that requiring the petition to be by the general guar-dian of the infant, or to show that he has none. (Cole v. Gourlay, 79 N. Y. 527 [1880].) Infant need not join in petition.] Under ,the provisions of the Revised Statutes, in relation to the sale of real estate of infants {2 R. S. 194, § 170, et seg. ) , it is not essential that the infant should join in the petition for such sale ; it may be made by the next friend or guardian alone. (Cole v. Gourlay, 79 ]Sr. Y. [1880]. See, however. Code Civ. Pro., ■§ 2349.) Form of petition.] Tlie form of the application is not of importance, if the necessary facts are stated. A petition entitled " The petition of, etc., infants, by their next friend," is sufficient to give the court jurisdiction. (O'Reilly v. King, 2 Rob. 587 [Gen. T. 1864]; S. C, 28 How. Prac. 408.) 350 Courts of Eecoed. [Kule 55 A petition in proceedings instituted for the sale of an infant's real estate, reciting that it was the petition of an infant under fourteen years of age, by his general guardian, and executed by the latter on the infant's behalf and verified, although throughout the petition the infant is described as the petitioner, is the petition of the guardian, and is sufficient in form. (Matter of Hopkins, 33 App. Div. 615 [1898].) ■ ■ When irregular.] Such petition is, however, defective where it fails to state the facts and particulars concerning the real and personal property of the infant, his income, and the debts against his estate, as required by Code of Civil Procedure (§ 2350), it not appearing that the sale was necessary to avoid an action of partition; and a purchaser is justified in refusing to take a title founded thereon. (lb.) It should be addressed to the " Supreme Court of the State of New York."] (Matter of Bookhout, 21 Barb. 348 [Sp. T. 1856].) Where made.] The application must be made at a Special Term, and not to a justice at chambers. (Matter of Bookhout, 21 Barb. 348 [Sp. T. 1856].) BOND — Of guardian to sell infant's real estate — when it should be exe- cuted — it takes effect from the time of its delivery.] (Center v. Finch, 22 Hun, 146 [1880].) SALE TO PAY DEBTS — Special guardian cannot dispute such debts.] Proceedings to mortgage an infant's real estate for payment of his debts — the special guardian cannot dispute the validity of debts he is directed to pay — when he is not protected by an order of confirmation. (Matter of Lampman, 22 Hun, 239 [1880].) ORDER — Form of, in proceedings to pay debts.] In proceedings to mort- gage an infant's real estate for the payment of debts, the order directing the mortgage, and the report of the referee, should specify the debts to he paid. (Matter of Lampman, 22 Hun, 239 [1880].) — Deposit without delivering to the depositary a copy order directing it.] In proceedings to sell real estate in which an infant had an interest, her special guardian being directed by order of the court to deposit the amount of her share with the defendant, " to await the further order of said court," made the deposit, without serving the order of the court, in his name as special guardian for the infant. Held, that this did not constitute notice to the defendant of the order, and the amount having been paid to the special guardian or on his order, could not be recovered from defendant by the infant on becoming of age. (Walker v. State Trust Co., 24 Misc. Eep. 498 [1898].) DEED — May be executed by a special guardian in his name as special guardian.] An order in the Court of Chancery, in proceedings for the sale of certain infants' real estate, adjudged that the special guardian, who signed the petition, should execute a sufficient conveyance of the interests of the in- fants; a -deed was executed by him in his own name as special guardian, the names of the infants appearing in the deed. Held, that the deed was in proper form; that it was not necessary to have it executed in the names of the in- fants. (Cole Y. Gourlay, 79 N. Y. 527 [1880].) COUNTY COURT — Always open, for proceedings for sale.] The County Court need not exercise its powers in regard to the sale of an infant's estate Eule 55] General Rules of Peaotice. 351 at a stated term, but is always open for that purpose, except as otherwise provided by statute. (Brown v. Snell, 57 N. Y. 286 [1874]. See Code Civ. Proc, § 3(55.) LEASE — Powers of a Court of Chancery to lease an infant's real estate.] The Court of Chancery, under its powers to lease the lands of infants, had jurisdiction in an action by trustees of real property in which infant defend- ants were entitled to a conditional remainder, to authorize the execution of leases by the trustees for a term of years, with covenants for renewals, and a judgment to that effect will bind the infants upon their subsequently acquir- ing an estate in the lands by virtue of a power of appointment under a will executed pursuant to the deed under "which the trustees were appointed. (Gomez v. Gomez, 147 N. Y. 195, a%. 81 Hun, 566 [1895].) Allowance to a guardian for expenses — suing as a poor person.] Where a guardian ad litem of an infant appointed upon the petition of the infant's father, after obtaining an order of the court permitting him to sue as a poor person, commences the action, but before trial, upon the stipula- tion of the attorneys, such order is vacated by a subsequent order not filed until after judgment is rendered, the latter order should be set aside and the proceedings be remitted to the Special Term to determine what allowance should be made to the guardian for expenses, it being evident that the plain- tiff's attorney was seeking to secure for himself a greater compensation than is allowed by the law under which he was appointed. (Dunlay v. American Telephone & Telegraph Company, 4 App. Div. 432 [1896].) MORTGAGING INFANTS' REAL ESTATE — Powers of the court relating thereto, etc.] Under section 2348 of the Code of Civil Procedure, the court has power to authorize the mortgaging of real estate of infants for the pur- pose of discharging an annuity charged thereon, and the mortgage covers what- ever interests the infants have, whether an estate in possession or a vested future estate. (Graver v. Jermain, 17 Misc. Eep. 244 [1896].) Use and income of property given to executors in trust until infants become of age — the remainder vests and may be mortgaged.] The fact that the use and income of property is given in trust to executors until the infants attain majority, when the land is devised to them, does not prevent the vesting of the remainder independent of the trust, and the same may be mortgaged by authority of the court, though such vested interests may possibly be defeated by the happening of a future event. (/6.) When a mortgage, including the interests of infants, need not state their proportionate liability.] Wliere an order directs the guardian of infants to unite with the adults interested in giving a mortgage on different pieces of property, and the mortgage refers to the proceedings by which it was authorized, they are to be construed with it, and where they show the pro- portionate liability of the infants' estates the mortgage itself need not specify the limitation of each. (Ili-) Mere irregularities in proceeding to mortgage are not ground for set- ting the mortgage aside.] A brewery business belonging t(J an infant was carried on for a time, solely in his interest, by his general guardian who, as such, gave his own notes to a bank to meet an indebtedness incurred in the business, and procured an order of the Supreme Court to mortgage the infant's 352, CouETS OF Eecoed. [Kule 56 real estate, in the proceedings for -which the general attorney cif the bank was appointed special guardian and made an oral agreement, afterward carried out to mortgage the property to a third person, by whom the mortgage was after- ward assigned to the bank. In an action brought by the infant to have the mortgage set aside. Held, that the attorney not having i-epresented the bank in the proeeedinurt of Appeals. (Dows v. Congdon, 28 N. Y. 122 [1863] ; Hale v. Clauson, 60 id. 339 [1875].) When property should be sold as a whole.] Upon the sale of mort- gaged property, which consists of more than one lot, and upon which is a building which requires the use of all the land, tlie property should be sold as a whole. (Goudert v. De Logerot, 30 N. Y. Supp. 114 [Sup. Ct. 1894].) Position of an auctioneer at a judicial sale.] An auctioneer at a judicial sale should not be interested in the sale as a party to the suit, un- known to the bidders, and the purchaser at such sale may on that ground avoid the sale without showing actual fraud or bad faith on the part of the auctioneer, although his interest be only that of a tenant by the curtesy. (Smith V. Harrigan, 27 Abb. N. C. 322 [Sup. Ct. 1891].) Disposition of the percentage paid on a sale where the purchaser de- faults after assigning his bid.] At a foreclosure sale where the highest bidder having paid the referee the ten per cent deposit, assigns his bid to another upon an agreement that such party will procure the balance of the purchase price, which he fails to do, and the property is resold for enough to satisfy the cla,im in full, and the first purchaser and the party to whom he assigned his bid severally assign their interests in the deposit to different persons, the assignee of the former is entitled to the deposit. (Flint v. George, 28 St. Rep. 629 [Sup. Ct. 1889].) Where remedy is by motion.] \ATiere a judgment erroneously provides that a sale shall be made by a receiver, the remedy is by motion to correct the judgment and not by appeal. (Cole v. Tyler, 65 N. Y. 73 [1875].) Terms of — purchaser bound by.] (Hart v. Wandle, 50 N. Y. 381 [1S71].) INVERSE ORDER OF ALIENATION — Right to a sale in.] The right exists, where persons have liens upon separate lots covered by a mortgage, to require that the lots be sold' in the inverse order of alienation. (Thomas v. Moravia Machine Company, 43 Hun, 487 [1877] ; Van Slyke v. Van Loan, 26 id. 344 [1882].) Limitation of the rule.] The equitable doctrine that, when premises subject to a mortgage are conveyed in parts at different times, the parcels are to be primarily charged with the payment of the mortgage debt in the inverse order of alienation, is subject to qualifioation when the equities of a subsequent grantee require it. Where land is purchased subject to a mortgage covering it and other land, and an amount of the consideration agreed to be paid therefor, equal to the mortgage, is deducted from the purchase price because of the existence of the mortgage, the portion of the mortgaged premises so sold becomes primarily charged with the obligation of the mortgage. (Wood v. Harper, 9 App. Div. 229 [1896].) Primary liability of land conveyed subject to the mortgage.] Where a portion of mortgaged premises is conveyed subject to the mortgage, the .crantee covenanting to pay the mortgage, a subsequent grantee, not covenant- ing to pay the mortgage, whose deed refers to the conveyance assuming it, thereby has notice that, by an agreement between the parties in interest, the Eule 62] Geneeal Rules of Practice. 381 land fio conveyed is primarily liable for tlie payment of the mortgage, and he is not in a position to assert the nile that mortgaged premises should be sold in the inverse order of alienation. (Eyring v. Hercules Land Co., 9 App. Div. 306 [1896].) Successive mortgages.] Parcels of land, held by successive alienees subject to a lien on the whole, when resorted to for the satisfaction of such general lien, must be sold in the inverse order of alienation, and the principle is equally applicable to the ease of successive mortgages, as to that of succes- sive conveyances of the fee, of parcels of the mortgaged premises. (Denton v. Ontario County Nat. Bank, 77 Hun, 83 [1894].) Of land out of the State.] The rule that under a mortgage foreclosure sale the land must be sold in the inverse order of alienation holds good although part of the land is in another State. (Welling v. Ryerson, 94 N. Y. 98 [1883].) Rule one of equity only.] The rule that mortgaged premises are to be sold in the inverse order of alienation is one of equity and yields to circum- stances. (Bernhardt v. Lymburner, 85 N. Y. 172 [1881].) Where surety and principal own separate, undivided shares.] Where the mortgagors severally own separate, imdivided shares, and one is principal and the other is surety, the share of the .principal should be sold, first. (Erie Coimty Savings Bank v. Roop, 80 N. Y. 591 [1880].) Sale valid although the pieces are sold in an improper order.] A fail- ure to sell the piece of land, primarily liable for the debt does not render the sale void, and the purchaser at the sale acquires a valid title to the property purchased. (Jenks v. Quinn, 61 Hun, 427 [1891].) NOTICE OF DEFECT — Purchaser— when chargeable with notice of ex- isting conditions.] Where a mortgage is of a leasehold interest, and in the notice of sale under judgment of foreclosure the lease is referred to, a pur- chaser is chargeable with knowledge of the contents of the lease, and is sup- posed to have made his bid in view of its provisions. (Riggs v. Pursell, 6S N. Y. 193 [1876]; Kingsland v. Fuller, 157 id. 507 [1899].) Assignment — when notice thereof to the mortgagor is unnecessary.] No notice to the mortgagor of an assignment of a bond and mortgage is neces- sary to protect the assignee thereof against a counterclaim in favor of the mortgagor against the mortgagee, arising subsequent to the assignment. (Cen- tral Trust Co. V. Weeks 15 App. Div. 598 [1897].) Misdescription of an agreement in notice of sale.] A purchaser at a sale in foreclosure is entitled to rely upon a description of an agreement affect- ing the property referred to on the sale and in the notice of sale and is not obliged to examine the instrument thus misdeseribed. (Kingsland v. Fuller, 31 App. Div. 913 [1898].) Irregularities appearing on the face of the proceedings.] A purchaser at a sale in partition is chargeable with notice of an irregularity in the inter- locutory judgment consisting in its failure to provide for the pajonent of an existing lien on the undivided share of one of the parties, where such irregu- larity appears upon the face of the proceedings. (Kelly v. Werner, 34 App. Div. 68 [1898].) 382 CoTJETs OF Eecoed. [Rule 62 Outstanding interests not referred to in judgment, but subject to which the sale is made, afford no ground for refusing to complete the purchase.] Where a mortgage which does not cover certain interests in the mortgaged premises is foreclosed and a judgment is entered in the usual form without referring to such outstanding interests, but notice thereof is given on the sale which is made subject thereto, held, that the purchaser should be compelled to complete his purchase. (Cromwell v. Hull, 97 N. Y. 209 [1884].) Mortgagee purchasing with notice of an unrecorded deed.] A mort- gagee purchasing at a foreclosure sale and conveying the land to a hona fide purchaser with knowledge that the holder of an unrecorded deed was not a party to the foreclosure action, will be compelled to axxjount to the latter. The effect of filing a lis pendens is avoided by proof of notice of the unrecorded deed. What evidence is required to charge a client with notice of facts known to his attorney. (Slattery v. Schwannecke, 44 Hun, 75 [1887].) RESALE — Must readvertise for.] When the time for selling, pursuant to notice, has passed, and no valid sale has been made, or, if valid, the party elects to disregard it, the officer cannot sell again without an order of the court, unless he again advertises the sale, in which case no order is necessary. (Bicknell v. Byrnes, 23 How. Pr. 486 [Sp. T. 1862].) In mortgage foreclosure, private resale of property not authorized. (Ely V. Matthews, 128 App. Div. 513.) Resale discretionary — conditions of.] It is in the discretion of the court whether or not to set aside a sale, and whether or not, as a condition of the setting aside of the sale, the payment of the referee's and the auctioneer's fees will be required, where a defendant in a foreclosure action has procured a stay in order to fix the amount of an undertaking on appeal and a further stay on condition of paying the costs of advertising, providing for payment thereof on twenty-four hours' notice, and on notice has failed to make payment and thereafter procured an extension of time to complete his undertaking, which does not provide for a further stay, and before the justification was completed a sale has been made. (Stephens v. Humphreys, 46 St. Eep. 646 [Sup. St. 1892].) Not reviewable in the Court of Appeals.] An order granting or re- fusing a resale of land is discretionary, and not reviewable in the Court of Appeals. (C. L. Ins. Co. v. Bowman, 90 N. Y. 654 [1882]; Peck v. N. Y. k N. J. R. Co., 85 id. 246 [1881]; Fisher v. Hersey, 8 N". y. 'WTcly. Dig. 513 [Court of Appeals, October, 1879] ; White v. Coulter, 3 N. Y. Sup. c't. [T. & C] R. 608 [1874].) But is reviewable at the General Term. (Rogers v. Ives, 23 Hun, 424 [1881].) When ordered.] A resale of premises under a decree of foreclosure will be directed upon equitable terms when the first sale is made in such manner as to prevent fair competition, or where for ajiy cause it would h" inequitable to permit the sale to stand. (2 Ni Y. Wkly. Dig. 547 [Sup. Ct. 1876].) Terms of such resale.] When a purchaser fails to complete his purchase alleging objectio'ns to the title, the resale should be made upon the same terms as the first one; and if materially different, the deficiency cannot be collected from the purchaser on the first sale. (Riggs v. Pursell, 74 N. y. 370 [1878].) Rule 62] General Eules of Practice. 383 Conditions imposed on granting a resale.] The Appellate Division will not disturb the exercise by the Special Term of its discretion in refusing to order a resale under a foreclosure judgment except upon condition that the moving party should pay the costs and expenses of the sale and deliver an agreement directing him to bid at least a certain sum, and that the original sale should stand if upon the resale the party agreeing to bid such certain sum failed to do so, or having bought the same, failed to pay. ( German- American Bank V. Dorthy, 39 App. Div. 166 [1809].) Resale ordered where a promised notice was not given.] Where the property has been sold for the amount of the first mortgage, which was less than the assessed value, without notice except by advertisement to a junior mortgagee who had been promised that he should have notice before anything vpas done, a resale will be ordered at his request, plaintiff not objecting, on condition that the purchaser be reimbursed for expenses, and a bond given to bidi more than the assessed value at the resale. (Kennedy v. Bridgman, 27 JXisc. Eep. 585 [1899].) Sale under railroad mortgage not affected by the fraudulent default of the directors.] When a sale under the foreclosure of a railroad mortgage cannot be attacked because the directors were actuated by corrupt motives in permitting a default to take .place in the payment of the bonds. ( Harpending V. Munson, 91 N. Y. 650 [1883].) Inadequacy of price, not a sufdcient ground.] Mere inadequacy of price is not a sufficient ground to set aside a judicial sale of real estate, unless it be so great as to shock the conscience of the court and raise the inference cf imfaimess or fraud, or unless there are circumstances of mistake or sur- prise; and a resale will not be ordered as a general rule upon an offer to increase the price brought at the sale, without the support of some special circumstances. Where a person knowing that real estate was to be sold by virtue of a judgment took no action whatever to have it bring any larger sum than it was sold for, and gave no attention to the matter, he is not free from the imputation of laches upon a motion made by him to set such sale aside. ( Wes- son V. Chapman, 76 Hun, 592 [1894].) When ordered for inadequacy of price.] A resale is not generally ordered for mere inadequacy of price, but it will be where there has been any surprise produced by the 'act of the person making it, or where the person seeking to open the sale, having an interest, has been misled by the device or concealment of the person making the sale. (Frances v. Church, Clark's Oh. 476.) Will not be ordered merely because a higher price is anticipated on a resale.] A sale under a judgment will not be set aside in the absence of fraud, surprise or well-grounded misapprehensions, simply because a higher price can be reasonably anticipated on a resale of the premises. (Kellogg v. Howell, 62 Barb. 280 [Gen. T. 1872].) Inadequacy of price and insanity of mortgagee not a ground for a resale.] In a foreclosure action an order should not be granted allowing the judgment and sale to stand, but directing the purchaser to account for profits 384 Courts of Kecoed. [Rule 62 from possession and a resale, merely because there is evidence that the price was inadequate and that a mortgagee was insane at the time of the sale. (Provost V. Roediger, 32 St. Re,p. 1101 [Sup. Ct. 1890].) When sale under execution will be set aside for inadequacy of price.] When a sale of real estate under an execution will be set aside because of the inadequacy of the price paid. (Chapman v. Boetcher, 27 Hun, GOG [1882].) Inadequacy of price.] Inadequacy of price itself may furnish ground sufficient to justify suspicion of fraud or mistake, and to set aside a judicial sale. (Arlington Square Savings Bank v. Cassidy, 5 N. Y. Wkly. Dig. 83 [Sup. Ct. 1877].) What constitutes laches and insufScient ground.] The petitioner did not offer to bid for the property upon a resale any more than the price for which it was sold, and did not show that any one would bid any more; also, with knowledge of all the essential facts, it delayed for nearly two years before making the application. In the meantime the property had gone into the hands of a new corporation, which had expended large sums of money thereon, had mortgaged the same to secure bonds, and had issued stock to a large amount; so that if a resale were ordered it would be impossible to restore the parties to be affected thereby to their former position, and irreparable mischief might be done. Held, that the petitioner had no absolute legal right to have the sale set aside; that the court below had discretion to deny the application; that it did not appear it had abused its discretion, and, there- fore, this court had no jurisdiction to review the order appealed from. ( F. L. & T. Co. V. B. & M. T. Co., 119 N. Y. 15 [1890].) Ordered — where facts exist, casting suspicion on the sale had.] A court of equity will set aside a sale and order a resale, although fraud may not be clearly established, where facts exist casting suspicion upon the fair- ness of the sale. (Fisher v. Hersey, 78 N. Y. 387 [1879].) An agreement to bid for another, when violated, is a ground for a resale.] A resale should be directed in a foreclosure proceeding when plain- tiff's agent, after arranging witli the party having an interest in the equity of redemption to bid off the property for him at a certain price, and it is too late for another arrangement to be made, informs the party that he intends to bid for himself, which he does, and buys the property for a smaller amount than that which he agreed to bid by the arrangement, and then states that he has sold to a third person. (!>!. Y. Eastern Christian & Benevolent Assn. v. Bishop, 28 St. Eep. 22 [Sup. Ct. 1889].) Mistake of purchaser, justifying a resale.] A purchaser at a judicial sale will be relieved from completing his purchase upon his giving indemnity against the expenses of a resale where it appears that he had bid upon the property and that it was struck down to him without his having seen the notices of sale or the handbills circulated thereat, and where he claims to have been mistaken in the location of the property and requested the auctioneer to put the property up for sale again. (Vingut v. Vingut, 42 St. Eep. 787 [Sup. Ct. 1891].) Sale in parcels.] It is unnecessary when a resale of mortgaged prem- ises is directed to be made in parcels that the notice of the resale should so specify. (Hoffman v. Burke, 10 N. Y. Wkly. Dig. 347 [Gen. T. 1880].) Eule 62] General Eules op Peactice. 385 " Difference and costs and expenses on the resale " — subsequent taxes included within.] (Ruhe v. Law, 8 Hun, 251 [1876].) Foreclosure of a railroad mortgage — when a sale, had under a decree in, will not be set aside.] (Peck v. New Jersey & N. Y. R. R. Co., 22 Hun, 129 [1880].) IRREGULAR SALE — Who may move to set aside an irregular sale.] An action to set aside a judicial sale for irregularity cannot be maintained even by one who was not a party to the original action. Every person whose rights are injuriously affected by a judgment or proceedings under it, has the right to move the court to set aside or amend them, although he is not a party to the action. Relief against a judicial sale for irregularity merely, can be had only by motion. (Gould v. Mortimer, 16 Abb. Pr. 448 [Sp. T. 1863] ; 26 How. Prac. 167.) Sale of corporate property not set aside on behalf of a minority stock- holder.] A sale on foreclosure of corporate property should not be set aside at the instance of the holder of only a small number of shares where he is the only stockholder who seeks to avoid the transaction of which he complains and made no complaint until after the sale, unless he is refused the fair value of his share of the property. (Drake v. New York Suburban Water Co., 36 App. Div. 275 [1899].) Sale void, when summons was served by publication and no property was attached.] Where a sale is had under an execution upon a judgment issued in an action against a, nonresident, where the summons was served by publication and no attachment was issued, no title passes to the pur- chaser. (McKinney v. Collins, 88 N. Y. 216 [1882]. See Code of Civil Pro- cedure, § 707.) Proper form of execution where an attachment has issued.] In an action wherein an attachment had been issued upon the ground that defend- ant, a resident of the State, had departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, the execution directed the sheriff to collect the judgment out of the attached personal property, and, if that was insufficient, out of the real estate. Held, that so far as the real estate was concerned, the execution was void, and the sale under it conveyed no title; that the provision of the Code of Civil Procedure (§ 1370, subd. 2), prescribing the form of execution, was peremptory, and that the attached real estate could not be resorted to until the remedy against the debtor's personal property, both attached and unattached, had been exhausted. (Place V. Riley, 98 N. Y. 1 [1885].) Receiver of an insolvent corporation — sale of its assets without notice to the Attorney-General — irregularity — how cured.] The omission of re- ceivers of an insolvent corporation, appointed in proceedings taken for its voluntary dissolution, to serve upon the Attorney-General notice of the ap- plication for an order directing the sale of its property by them, is cured by a subsequent order of the court, made upon due notice to the Attorney- Gen- eral, confirming such sale, and directing the re-entry nunc pro tunc of the order authorizing the sale. 25 386 CouETs OF Eecoed. [Eule 62 Upon such confirmation by the court the title of a purchaser at the sale becomes complete, and it is immaterial that stockholders of the corporation have received no notice of the application for the order of confirmation. (John- son V. Kayner, 25 App. Div. 598 [1898].) Irregular appointment of a referee to sell does not vitiate the sale.] In an action to foreclose a mortgage in Kings county, all the parties appeared save one, who was an absentee, and all of those appearing consented that the sale be by a referee; and the judgment directed the sale to be so made, the court holding that the consent of those appearing was a sufficient com- plia.nee with the provisions of the act of 1870 (chapter 439), which requires foreclosure sales in said county to be by the sheriff, unless all the parties to the action consent that it may be made by a referee. Held, that if the court erred, this did not render a sale by the referee void, and was not an objec- tion to the title given on such sale. (Abbott v. Curran, 98 N. Y. 665 [1885].) Order of confirmation cures the omission of " a portion of the " land from advertisement of sale.] An omission from a referee's advertisement of sale of a portion of the lands embraced in the action, and directed to be sold by the judgment, does not vitiate a sale by iae referee of the omitted por- tion, where, upon motion made, on due notice to all the parties interested, the sale is confirmed and the irregularity does not constitute a defect in the title acquired on such sale. (Woodhull v. Little, 102 N. Y. 165 [1886].) Partition suit irregularly brought by the life tenant — the title ac- quired at the sale is good.] Although a tenant for life may not maintain partition because not a joint tenant, or ten?.nt in common with the remain- dermen, yet the defect is not jurisdictional, and a decree of sale in such an action is not absohitely void; it may onlj' be corrected on appeal. As against those made parties to the action, a sale imder the decree gives a good title. (Cromwell v. Hull, 97 N. Y. 209 [1884].) Partition sale — purchase by a guardian in his own nome.] A pur- chase of lands of infants at a partition sale by the guardian in his own name is presumptively void, and the burden rests upon one claimng under him to show that the purchase was for the benefit of the infants. (O'Donoghue v. Boies, 150 N. Y. 87, affg. 92 Hun, 3 [1899].) Who may attack an irregular sale.] Semble, that any person inter- ested in premises which have been sold in foreclosure proceedings may take advantage of such an irregularity as the failure to publish the notice of sale, by moving to set the sale aside on that ground, but such motion must be made within a reasonable time, or the irregularity will be deemed to have been waived, and a delay of nineteen years is imreasonable. (Farrell v. Noel, 17 App. Div. 319 [1897].) ADJOURNMENT — The attorney can postpone a sale.] An adjournment may be made by plaintifl"s attorney in a foreclosure sale. Code Civil Pro- cedure, § 1678.) Sale in violation of a referee's promise to adjourn it.] A sale in an action brought to foreclose a mortgage should be controlled solely by the referee appointed to conduct it; and where it appeared that the referee, after informing the attorney for the defendants that the sale would Eule 62] General Rules of Peactice. 387 be adjourned, then proceeded, at the instance of the plaintiff's attorney, and in violation of his promise, to sell the property, the court set the sale aside upon proof that it prejudiced the rights of the defendants, and appointed a referee to take an account of the purchaser's payments and expenditures upon, and his receipts from, the property, and directed that any balance found to be due to the purchaser be paid to him from the proceeds of the resale, before payment of the mortgage. (Angel v. Clark, 21 App. Div. 339 [1897].) Stay of proceedings — effect of.] WTiere, after a referee has been ap- pointed to sell real estate in pursuanec of a judgment of foreclosure, and a notice of sale has been duly published, the defendant serves an undertaking to stay proceedings upon appeal in pursuance of section 341 of the Code of Procedure, the plaintiff is not required to abandon the proceedings instituted by him, but may adjourn the sale until it can be determined whether or not the sureties will justify. (Ward v. James, 8 Hun, 526 [1876].) Auctioneer's fees on.] No fees can be allowed to an auctioneer for services rendered upon the adjournment of a sale by a referee. A referee is only entitled to receive the same fees for selling real estate as by law is allowed to a sheriff, (/b.) Adjournment — day to which it is had — to be named.] Upon an ad- journment the day on which the sale is to be had should be named, but when the day is not named, through the default of the defendant, the sale will not be set aside. (La Farge v. Van Wageneu, 11 How. Pr. 54 [Sp. T. 1857].) TAXES — Who liable for taxes, etc.] Who is liable on a mortgage fore- closure for the payment of ta.xes and assessments. (Mutual Life Ins. Co. v. Sage, 28 Hun, 595 [1883].) Terms of sale stating what taxes and assessments would be allowed.] The provision in terms of sale, under which property is sold, in an action of partition, that " all taxes and assessments, duly confirmed and payable, which at the time of this sale are liens or incumbrances upon said premises, will be allowed by the referee out of the purchase money," refers only to those taxes and assessments, duly confirmed and payable, which were liens upon the premises on the day of the auction sale. (Ainslee v. Hicks, 13 App. Div. 388 [1897].) Agreement that a disputed assessment shall not be paid out of the proceeds — the municipality cannot object.] Where all the parties interested in a foreclosure action, including the pirrchaser at the sale, agree that the disputed assessment shall not be paid out of the proceeds of the sale, an order to that effect may properly be made, notwithstanding the objection of the municipality which imposed the assessment. (Morgan v. FuUerton, 9 App. Div. 233 [1896].) PURCHASER RELEASED — When a party is entitled to be released and have the sale set aside.] Where D. purchased at a sale, on execution, all the right, title and interest of T. in certain real estate, misled by the representa- tion of the creditor's attorney that T. had a good title, and afterwards dis- covered that T. had conveyed the property prior to the docketing of judgment, held, that D. was entitled, on motion, to have the sale set aside, and to be released from his purchase. (Dwight's Case, 15 Abb. Prac. 250 [Gen. T. 1862]. See, also, German Savings Bank v. Muller, 10 Wkly. Dig. 67 [Gen. T. 1889].) 388 CouETs OF Kecoed. [Rule 62 Want of authority in attorneys.] The plaintiff and several of the de- fendants in an action of partition were nonresidents of the United States. The nonresident defendants appeared by attorneys, but there was nothing in the judgment-roll showing the authority of such attorneys to appear for them. The plaintiff's attorney died and an order was made substituting another attorney, but, so far as the record showed, without the consent of the plain- tiff. This attorney died, and another attorney assumed to act for the plain- tiff without any order of substitution. Held, that a purchaser upon the sale should not be compelled to take the title. (JIcKenna v. Duffy, 64 Hun, 597 [1892].) Error in describing the owner of the equity of redemption in the sum- mons.] Where the owner of the equity of redemption who did not appear in the action, is designated in the summons and complaint as Emma J. Stock- ton, whereas her name was in fact Mary J. Stockton, and before the entry of judgment an ex parte order is entered correcting the error, but no amended or supplemental summons served, nor any amended notice of pendency of action filed, a purchaser at the sale had under the judgment does not acquire a marketable title, notwithstanding that the owner of the equity of redemp- tion appeared in the surplus money proceedings. (Stuyvesant v. WeU, 41 App. Div. 551 [1889].) Sale subject to a mortgage already in judgment — purchaser relieved.] Where, under a decree for the foreclosure of a si'cond mortgage, by the terms of sale, as read by the auctioneer and signed by the purchaser, "the property is sold subject to a first mortgage of $5,000, due September, 1888; " and it appears that at the time of the sale the prior mortgage was in pro- cess of foreclosure, and a decree for the foreclosui-e thereof and the sale of the premises had actually been entered, before the time at which the pur- chaser was to take his deed, the purchaser is entitled to be relieved from hia purchase. (Bradley v. Leahy, 54 Hun, 390 [1889].) Purchaser entitled to a good title.] A purchaser at a foreclosure sale, not put upon his guard by some prior notice, may insist upon a good title, and will not be required to pay the purchase money and accept the deed where there is any serious defect in the title, unless it is remedied, although such defect was one existing prior to the giving of the mortgage of which the equity of redemption was foreclosed; but where he pirrchases with knowl- edge of the defect, its existence will not justify him in refusing to complete the purchase. (Fryer v. Rockefeller, 63 N. Y. 268; Jordan v. Poillon, 77 id. 518 [1879].) Purchaser is entitled to a marketable title.] The purchaser of land at a judicial sale is entitled to a marketable title; the court cannot make a doubtful title good by passing upon an objection depending on a disputed question of fact or a doubtful question of law, in the absence of the party in whom the outstanding right is vested. (Fleming v. Burnham, 100 N. Y. 1 [1885].) Marketable title — curing defects.] A purchaser at a partition sale is entitled to demand a marketable title, i. e., one free from a reasonable doubt Eule 62] General Eules oe Pkactice. 389 as to its validity. If an essential act has been omitted or nnseasonably taken in the action which may render the judgment ineffectual as to any of the parties in interest, it is the duty of plaintiff to take the proper steps for curing the defects before he can be heard upon a motion to compel the the purchaser to complete his purchase. (Crouter v. Crouter, 133 N. Y. 55 [1892].) Defect of title through nonjoinder of parties.] When a purchaser at a sale under a foreclosure will not be compelled to complete his purchase be- cause of the nonjoinder of parties. (Dodd v. Neilson, 90 N. Y. 243 [1882]. 1 Delay in perfecting defective titles excuses purchasesr from complet- ing the sale.] When purchasers refusing to complete a sale, because of a de- feet in the title, will be excused from completing it, although the title is sebsequently perfected, because of delay in perfecting it. (Rice v. Barrett, 99 N. Y. 403 [1885].) Unpaid transfer tax.] A purchaser at a foreclosure sale cannot be comipelled to complete where the sale was of the entire title and a devisee of the owner of the equity of redemption, who was not a relative, has not paid the transfer tax, as in such case the tax is a lien which renders the title marketable. (Kitching v. Shear, 20 Misc. 43H [1899].) Right of way over the land.] The title to a lot bounded on a street, which, by legislative act, is moved ten feet after the conveyance by the orig- inal owner, is not marketable, where it appears that various grantees had or may claim the easement or right of way over the ten-foot strip of the former highway. (Scripture v. Morris, 38 App. Div. 377 [1899].) Want of a provision in a judgment of partition for unknown remain- dermen.] Where the title was derived through a will which created a trust for two lives with remainder to the children then living and the descendants of such as may then be dead, a marketable title is not furnished by a judg- ment in an uncontested partition, commenced before the termination of the trust, which contains no provision for the benefit of unknown owners or after-born children, and the purchaser cannot be required to complete. (Smith V. Secor, 157 N. Y. 402, affg. 31 App. Div. 103 [1898].) Purchase under an honest misapprehension.] In judicial sales the utmost fairness will be observed, and the purchaser will not be compelled to complete his purchase when he has bid at the sale under an honest mis- apprehension, and has subsequently discovered that he has not bought the property for which he supposed he was bidding, and at once applies for relief. (Dimn V. Herbs, 56 Hun, 457 [1890].) ^Judicial sale — cannot be enforced with deduction from price for defect.] Purchase at a foreclosure sale — the court cannot enforce it as to part, with a deduction from the price for the residue as to which the title is defective. (Thompson v. Schmeider, 38 Hun, 504 [1886].) Premises destroyed by fire.] When between the time of the purchase and that at which the purchaser is entitled to a deed, the premises are de- stroyed by fire, the purchaser will be relieved from his purchase. It is other- wise where the damage is slight. (Aspinwall v. Balch, 7 Daly, 200 [Sp. T. 1877].) 390 CouETs ov Eecoed. [Sule 63 Destruction of premises before the closing of the sale.] Where, after the purchaser at a partition sale has signed a memorandum of sale and paid ten per cent of the purchase price, but before the date fixed for the closing of the sale, a building situate upon the premises is destroyed by fire, thus caus- ing a depreciation in the rental value of the property of from eighty to ninety-six dollars per year, and the local authorities forbid the erection of another building to talce tlie place of the one so destroyed, the purchaser should not be compelled to complete his purchase. (Harrigan v. Golden, 41 App. Div. 423 [1899].) NOT RELEASED — Creditor's suit — based on an order directing a pur- chaser at a judicial sale to pay damages.] An order directing a purchaser at a judicial sale to pay the damage resulting from his failure to complete the same is to be regarded as a judgment and is a sufficient basis for a creditor's suit. (Lydeclce v. Smith, 44 Hun, 454 [1887].) Gold clause in mortgage not a defect in title.] The existence in a mortgage of a clause requiring the mortgage debt to be paid in gold, will not relieve a purchaser of the property at a receiver's sale from the duty of completing the purchase. (Blanck v. Sadlier, 153 N. Y. 551 [1897].) Unsatisfied mortgage apparently barred by the statute.] The exist- ence, unsatisfied of record, of a mortgage on property which is the subject of an action of partition, is not a tenable objection to the title, in the absence of proof tending to rebut the statutory presumption of payment, especially where the surviving mortgagee makes affidavit that the mortgage was paid shortly after it became due. (Paget v. Melcher, 42 App. Div. 76 [1899].) Presumption that judicial proceedings are regular.] There always exists a presumption in favor of the regularity of judicial proceedings, which is strengthened by lapse of time, and which should not be lightly disregarded when such proceedings are attacked collaterally on a technical point of practice. (Lowerre v. Owens, 14 App. Div. 215 [1897].) Order for publication of summons having a court caption.] Where an order for the publication of a summons, which is required by the Code of Civil Procedure to be made by a judge, was presented to a judge while he was holding Chambers and Special Term for the hearing of non-enumerated motions, and was signed by him with his initials, coupled witli a direction for its entry, ■it was held, that, notwithstanding the fact that the order had a Special Term caption and used the word " court " in the body thereof, it would be presumed that it was made by the judge, as a judge, and not as the embodiment of the court held by him. {lb.) Failure to file report of sale.] The deed of a referee made upon a sale in foreclosure passes the title to the purchaser, notwithstanding the fact that the referee fails to file any report of sale, and that there is no proof that due notice of the sale was published as required by law. (Farrell v. Xoel, 17 App. Div. 319 (1897].) The purchaser may stand upon referee's deed.] The grantee in such a deed may rely thereon, and the burden rests upon a person attacking his title to show that the notice of sale was not properly published. (/?).) ——Purchaser not relieved by a mere possibility of failure of title.] A purchaser at a partition sale will not be compelled to accept a doubtful title. Eule 62] Geneeal Eules of Practice. 3&1 but a mere possibility that he may be disturbed will not justify a refusal to accept a title. What evidence of the release of a condition is sufficient to make the title good. (Post v. Bernheimer, 31 Hun, 247 [1883].) A defect must be substantial.] A purchaser at a judicial sale cannot reject the title unless the defect is a substantial one. A defect resting upon a mere contingency is not sufficient. (Oakley v. Briggs, 44 St. Rep. 397 [Sup. Ct. 1892].) Marketable title — a mere possibility of defect does not affect it.] A purchaser at a judicial sale is entitled to a marketable title, that is, one free from reasonable doubt. He will not be compelled to take title where a doubt- ful question of fact, relating to an outstanding right, is not concluded by the judgment under which the sale was made. If, however, the existence of the alleged fact, which is claimed or supposed to constitute a defect in or cloud upon the title, is a mere possibilitj', or the alleged outstanding right is but a very improbable or remote contingency, the court may, in the exercise of a sound discretion, compel the purchaser to complete his purchase. (Cambrelleng v. Purton, 125 N". Y. 610 [1891]. See Daaa v. Jones, 91 App. Div. 496; Marshall v. U. S. Trust Co., 93 App. Div. 479.) Title not unmarketable because a turnpike road once crossed the land.] A purchaser will not be relieved from completing a purchase at a judicial sale |by the fact that a map of a turnpike company included a part of the premises, the road of such turnpike company having been discontinued in 1810, and no claim having been made in its behalf since such time nor substantiated by other records. (Oakley v. Briggs, 44 St. Rep. 397 [Sup. Ct. 1892].) Sale of right, title and interest only.] A purchaser at a foreclosure sale cannot be relieved on the ground of a defective title simply because only the right, title and interest of the mortgagor was tendered where only the right, title and interest of the mortgagor was offered for sale. (Van Rens- selaer V. Bull, 43 St. Rep. 340 [Sup. Ct. 1891].) Purchaser not excused by a failure to appoint committees for lunatic defendants.] Purchaser at a foreclosure ' — when he will be compelled to com- plete the purchase, although two of the defendants were lunatics, for whom no committees had been appointed. (Prentiss v. Cornell, 31 Hun, 167 [1883].) Purchaser at judicial sale not relieved because of irregular service where jurisdiction is obtained.] Where, in tho service of summons by publica- tion, defects exist in the notice attached to the summons which do not, how- ever, prevent the court from acquiring jurisdiction, a purchaser at a judicial sale had in such action will be required to accept the title (Loring v. Binney, 38 Hun, 152 [1885].) Partition — erroneous construction of a will, not objected to.] A pur- chaser at a partition sale will not be relieved from completing upon the ground that the decedent's will, through whom all the parties claimed title, was erroneously construed, where it appears that the question was fairly pre- sented for litigation, and that there was no person having any possible interest in the title who was not made a party to the action. (Brown v. Mount, 38 App. Div. 440 [1899].) 392 CouETS OF Eecoed. [Kule 62 Purchaser not relieved from his purchase on account of defects of title of which he had notice.] It is a well-settled rule that a purchaser at a mort- gage foreclosure sale will not be relieved on account of apparent defects in the property, or of defects in the title of which he had notice, and in refer- ence to which he made his bid. Where an action is brought to foreclose a mortgage, and prior to the ren- dering of any decision therein, one of the defendants, who was the owner of an undivided interest in the premises covered by the mortgage, dies, and her heirs or devisees are not brought in as parties defendant, a judgment in the action against her is wholly without authority, and her estate in the premises sought to be foreclosed is wholly unaffected thereby. (Stephens v. Humphreys, 73 Hun, 199 [1893].) A slight variation in measurement is not a substantial defect.] A variation of one-half inch in a distance of 141 feet does not constitute a sub- stantial defect in the title, where it is not disputed that the purchaser will obtain a good title to all property included within the boundaries as de- scribed in the advertisement of sale. (Merges v. Ringler, 34 App. Div. 415, affg., 24 Misc. Rep. 317 [1898].) Encroachment of a wall on adjoining land.] A purchaser will not be relieved because an old building on the premises encroaches on the street to such a slight extent that it is not probable tliat the city would raise an objec- tion, and the city cannot, under the statutory provision, be allowed to remove the wall. (Merges v. Ringler, 34 App. Div. 415, affg. 24 Misc. Eep. 317 [1898]; Harrison v. Piatt, 35 App. Div. 533 [1898].) Title acquired, good, although a party is allowed to come in and defend after the sale and succeeds.] A purchaser acquires a good title where the proceedings are regular, although after a conveyance to the purchaser a defend- ant is allowed to come in and defend as authorized by the Code ( § 445 ) , and succeeds in his defense. (Place v. Riley, 98 N. Y. 1 [1885].) Foreclosure by advertisement.] The failure of the purchaser, at a sale under the foreclosure of a mortgage by advertisement, to file the affidavits of sale, which was made in due form, does not affect her title. (Matter of Law- son, 42 App. Div. 377 [1899].) Defective letters of administration.] Defect in granting letters of ad- ministration does not impair the title acquired under a sale on an action prose- cuted by an administrator as such as plaintiff. (Abbott v. Curran, 98 N. Y. 665 [1885].) Void process.] Under a void process no title can be acquired. (Place V. Riley, 98 N. Y. 1 [1885].) Revenue stamps must be aflBxed to referee's deed.] The purchaser at a judicial sale is entitled to a deed which will defend his title in any tribunal in which it is attacked or where he is called upon to assert it, and may re- quire the referee to affix the revenue stamps required by the War Tax Act. (Loring v. Chase, 26 Misc. Rep. 318 [1899].) Judgment in partition conclusive where all parties in interest are brought in.] Where all the parties interested in the property have been made parties to the partition action, the judgment therein, while unreversed, is con- clusive in support of its validity (Butler v. Butler, 41 App. Div. 477 [1899].) Eule 62] General Eules of Practice. 393 Remedy where the purchaser fails to complete the purchase.] Whether rthe court will compel a purchaser at a sale in foreclosure to complete the pur- chase or direct a resale to be had rests largely in its discretion; the remedy for the failure of the purchaser to comply with an order requiring her to com- plete the purchase is by contempt proceedings. (Burton v. Linn, 21 App. Div. 609 [1897].) Practice where the purchaser fails to pay the ten per cent.] Where a purchaser upon a sale, had under an interlocutory judgment in an action for partition neglects 'to pay ten per cent, of the purchase price as required by the terms of the sale, and there has been no resale, the proper practice is to have the report of sale confirmed, to enter final judgment under section 1577 of the Code of Civil Procediure, and to tender a deed to the purchaser. It is only by this method that he can be placed in entire default. There is no authority to make a tender of a deed until the confirmation of the report of sale and the entry of judgment. (Latourette v. Latourette, 25 App. Div. 145 [1898].) Assignee of bid — when he may be compelled to complete the pur- chase.] One who purchases of the vendee, at a sale in partition, his bid, re- ceives an assignment of the same in writing, requests the deed, and, upon sub- sequently asking to be relieved from taking title because of an alleged incum- brance, invites the institution of a proceeding by which he hoped to obtain an adjudication so relieving him, submits himself to the jurisdiction of the court by reason of his interference with the proceeding, and may be compelled to complete the purchase. (Archer v. Archer, 155 N. Y. 415 [1898].) Compensation for immaterial defects.] Where the defects are not sufiicient to authorize a rejection of the title, the court, in compelling perform- ance, may allow compensation for the immaterial defects which appeared. (Merges v. Ringler, 34 App. Div. 415, aflfg. 24 Misc. Eep. 317 [1898].) DOWER — Effect of a sale in reviving right of dower in some cases.] Where a deed or .mortgage, executed by a husband and wife, conveying land owned by the husband, is defeated by a sale on execution under a prior judg- ment, the wife is restored to her original position, and may, after her hus- band's death, recover dower in the lands. (Hinchliffe v. Shea, 103 N. Y. 153 [1886].) RECORD — Effect of recording assignment of mortgage.] The record of the assignment of a mortgage is notice to all persons of the assignee's rights as against any subsequent acts of the mortgagee aflfeoting the mortgage, and protects the assignee against a subsequent unauthorized discharge of the mort- gage by the mortgagee. (Larned v. Donovan, 155 N. Y. 341 [1898].) The provision (1 R. S. 763, § 41] that "the recording of an assignment of a mortgage shall not be deemed, in itself, notice of such assignment to a mortgagor, his heirs or personal representatives, so as to invalidate any pay- ment made by them, or either of them, to the mortgagee," has no application to an action by the purchaser of mortgaged premises to remove the cloud of a recorded assignment of the mortgage, where, although the mortgagee had undertaken to satisfy the mortgage after its assignment and before the plain- tiff's purchase of the premises, there is no evidence that the mortgagor made 394 CouETs OF Eecoed. [Kule 62 any payment to the mortgagee, or gave him any consideration, for the satisfac- tion of the mortgage. (lb.) For what necessary.] One who purchases land from a mortgagee thereof, when the mortgage is on record, without making inquiry or requiring the production of the mortgage or of the note which it was given to secure, is not a iona fide purchaser as against a prior assignee of the mortgage, al- though the assignment was not recorded, since it is not necessary to record an assignment of a recorded mortgage as against a subsequent purchaser of the mortgaged premises, but only as against a subsequent purchaser of the mort- gage itself. (Curtis v. Moore, 152 N. Y. 159 [1897].) Purchase of land from the mortagee after the assignment of the mort- gage.] The assignee of a recorded mortgage upon real estate which was con- veyed by the mortgagor to the mortgagee after an assignment of the mortgage, has a valid lien as against a purchaser of the land from the mortgagee who took without notice of the assignment, notwithstanding the conveyance to the mortgagee as well as the conveyance from the mortgagee to the purchaser were recorded before the assignment was placed on record. (Curtis v. Moore, 152 N. Y. 159 [1897].) Recording a mortgage in a deed book.] The record of a mortgage in a deed book is ineffectual to charge a bona fide purchaser of the mortgaged prop- erty with constructive notice of the existence of the mortgage. (Howells v. Hettrick, 13 App. Div. 366 [1897].) Assignment of mortgage acknowledged before one of the assignees — record thereof is invalid.] The acknowledgment by a mortgage of an assign- ment of the bond and mortgage before one of the assignee's is a nullity, and the record of the assignment is invalid and does not constitute constructive notice of its existence. (Armstrong v. Combs, 15 App. Div. 247 [1897].) The failure to affix stamps required by the Revenue Law.] A record- ing officer in the State of New York has no power to refuse to accept an instru- ment entitled to record under the laws of that State, because of the failure to affix sufficient revenue stamps thereto. (People ex rel. Brewing Co. v. Fromme, 35 App. Div. 459 [1898].) DEFICIENCY — Judgment for deficiency against legal representatives.] If the mortgagor and obligor dies before the foreclosure of the mortgage, judg- ment for any deficiency may be recovered against his legal representatives in the foreclosure action. (In re Glacius v. Fogel, 88 N. Y. 434 [1882].) WARRAMTY — In prior deed — right of a purchaser at a foreclosure sale to recover thereon.] As to the right of a purchaser at a sale on foreclosure to recover damages for a breach of a covenant of warranty contained in the deed conveying the property to the mortgagor. (Mygatt v. Coe, 44 Hun, 31 [1887]; S. C, 124 N. Y. 212 [1891].) SENIOR INCUMBRANCERS — Made parties to a foreclosure, may demand foreclosure of senior mortgage.] Action to foreclose a mortgage. Senior incumbrancers may be made parties defendant. Right of such an incum- brancer to demand a foreclosure of his mortgage as a counterclaim. (Metro- politan Trust Co. V. Tonawanda Valley Railroad Co., 43 Hun, 521 [1887].) See Prior Liens, ante, under Rule 60. Eule 63] General Eules of Peaotice. 395 ADVERSE POSSESSION — Title founded on, sufficient.] When a pur- chaser of real estate at a judicial sale will be compelled to accept a title founded on adverse possession. (Ottinger v. Strasburger, 33 Hun, 466 [1884].) When a purchaser will not be compelled to accept a title based thereon.] A purchaser at a sale in partition will not be compelled to take a title based on adverse possession to defend which he would be obliged to resort to parol evidence. (Gorman v. Gorman, 40 App. Div. 225 [1899].) TITLE — Acquired on a mortgage foreclosure sale.] The effect of a fore- closure deed, as determined by the statute, is to vest in the purchaser thj entire interest and estate of the mortgagor and mortgagee as of the date of the mortgage and unaffected by subsequent incumbrances and conveyances by the mortgagor. (Rector, etc., Christ Protestant Episcopal Church v. Mack, 93 N. Y. 488 [1883]; Batterman v. Albright, 122 id. 484 [1890]; McFadden v. Allen, 134 id. 489 [1892].) VOID PROCESS — Bona fide purchaser under.] A bona fide purchaser acquires no title to land sold under a void process, and stands in no better position than one purchasing with full knowledge of the invalidity. (Place v. Riley, 98 N. Y. 1 [1885].) NOTARY — What notary cannot be referee.] The notary before whom the affidavit on which application for a reference is based was verified, the court cannot appoint as the referee to sell. (Stewart v. Bogart, 2 Law Bulletin, 94 [1880].) HAMILTON COUNTY — Notices in — in what newspapers published.] By chap. 202, Laws of 1873, all legal notices in the county of Hamilton are to be published in the Hamilton County Journal and the Hamilton County Democrat. NEW YORK CITY — Fees on sale.] Sales of real estate hereafter made in the city and county of New York, under the decree or judgment of any court, may be made by the sheriff of said city and county, or by a refereo appointed for that purpose by such judgment or decree, but when any sale is made by any officer other than the sheriff, no greater sum shall be charged or allowed as fees than as prescribed in section 2 of this act. (Laws of 1874, chap. 192, § 1. See Keim v. Keira, 43 App. Div. 88 [1899]; Code of Civil Procedure, § 3307, subd. 11; also § 3308.) RULE 63. Mortgage and Assignments to be Filed or Recorded before Conveyance — Expenses Allowed in Costs. Whenever a sheriff or referee sells mortgaged premises, under a decree or order, or judgment of the court, it shall be the duty of the plaintiff, before a deed is executed to the purchaser, to file such mortgage and any assignment thereof in the office of the clerk, unless such mortgage and assignments have been duly proved or acknowledged, so as to entitle the same to be recorded ; 396 CouETs OF Kecoed. [Rule 64 in which case, if it has not been already done, it shall be the duty of the plaintiff to cause the same to be recorded, at full length, in the county or counties where the lands so sold are situated, before a deed is executed to the purchaser on the sale ; the expense of which filing or recording, and the entry thereof, shall be al- lowed in the taxation of costs; and, if filed with the clerk, he shall enter in the minutes the iiling of such mortgage and assign- ments, and the time of filing. But this rule shall not extend to any case where the mortgage or assignments appear, by the plead- ings or proof in the suit commenced thereon, to have been lost or destroyed. See notes under Rule 62. Rule 75 of 1858. Rule 76 of 1871. Rule 76 of 1874. Rule 67 of 1877, amended. Rule 63 of 1880. Rule 63 of 1884. Rule 63 of 1888. Rule 63 of 1896. EULE 64. Application for Surplus Moneys — Notice Thereof — Reference — Searches — Unsatisfield Liens. On filing the report of the sale, any party to the suit, or any person who had a lien on the mortgaged premises at the time of the sale, tipon filing with the clerk where the report of sale is filed a notice, stating that he is entitled to such surplus moneys or some part thereof, and the nature and extent of his claim, may have an order of reference, to ascertain and report the amount due to him, or to any other person, which is a lien upon such surplus moneys, and to ascertain the priorities of the several liens thereon ; to the end that, on the coming in and confirmation of the report on such reference, such further order may be made for the distribution of such surplus moneys as may be just. The referee shall, in all cases, be selected by the court. The ovnier of the equity of redemption, and every party who appeared in the cause, or who shall have filed a notice of claim with the clerk, previous to the entry of the order of reference, shall be entitled to service of a notice of the application for the reference, and to at- tend on such reference, and to the usual notices of subsequent pro- ceedings relative to such surplus. But if such claimant or stich owner has not appeared, or made his claim by an attorney of this court, the notice may be served by putting the same into the post- office, directed to the claimant at his place of residence, as stated Hule 64] General Eules of Practice. 397 in the notice of his claim, and upon the owner in such manner as the court may direct. All official searches for conveyances or incumbrances, made in the progress of the cause, shall be filed with the judgment-roll, and notice of the hearing shall be given to any person having or appearing to have an unsatisfied lien on the moneys in such manner as the court shall direct ; and the party moving for the reference shall show,' by affidavit, what unsatisfied liens appear by such official searches, and whether any, and what other unsatisfied liens are known to him to exist. Eule 76 of 1858, amended. Rule 77 of 1871. Rule 77 of 1874, amended. Rule 68 of 1877, amended. Rule 64 of 1880. Rule 64 of 1884. Rule 64 of 1888, amended. Rule 64 of 189€. See notes under Rule 62. CODE OF CIVIL PROCEDURE. §§ 743-754. Money paid into court — care and disposition thereof. § 1633. Disposition of surplus arising on the sale in a foreclosure action. LIENS — Nature of.] The liens referred to in the rule are those which subject the estate to he sold under execution, without any further intervention of the court. Claims, however equitable, which have not matured into liens cannot be taken into consideration. (Husted v. Dakin, 17 Abb. 137 [Gen. T. 1857]; King v. Selby, 10 How. Prac. 333 [Sp. T. 1854].) Liens determined by date of foreclosure sale.] The rights, as between the holder of a sheriflf's certificate of sale, the time to redieem from which, by the owner of the equity of redemption, has not expired, and a second mort- gagee, whose mortgage is not yet due, will be deterjuined as of the d'ate of the foreclosure sale. (Elsworth v. Woolsey, 19 App. Div. 385 [1897].) Judgment creditor's lien.] Judgment creditors of a grantor of real estate, who has conveyed the same in fraud of his creditors, have, by virtue of their judgments, liens upon the premises so conveyed, which are entitled to priority in the order of time in which their respective judgments are docketed, and are not affected by the order in which suits to set aside such fraudulent transfer are instituted. (Wilkinson v. Paddock, 57 Hun, 191 [1890].) Lien extinguished.] By a sale of land on a judgment the lien of the judgment and the right to redeem under it are extinguished. (Husted v. Dakin, 17 Abb. 137 [Sp. T. 1857].) Claim on surplus moneys extinguished.] In like manner any claim •upon surplus moneys arising upon the foreclosure of a prior mortgage is ex- tinguished by such a sale. (Husted v. Dakin, 17 Abb. 137 [Sp. T. 1857].) SURPLUS MONEYS — Creditor's lien extends to surplus money.] Credi- tors having Hens upon lands sold under a prior judgment have the same liens upon the surplus moneys as they had upon the land previous to the sale. (Averill v. Loueks, 6 Barb. 470 [Gen. T. 1849].) 398 CouETs or Eecord. [Rule 64r - — Of an attorney on a judgment, will be protected.] The lien of an attorney upon a judgment will be protected by the court on an application for surplus moneys. Quwre, whether notice of such lien can be filed under Eule 77. (Atlantic Savings Bank v. Hiler, 3 Hun, 209 [1874].) Attorney's remedy for compensation.] The remedy of an attorney for compensation for his services must be by action. His claim should not be allowed from the share of his client, a judgment creditor, in an action of fore- closure. (Floyd V. Clark, 16 Daly, 528 [N. Y. Com. PI. 1880].) Priority of a lien creditor'.] Where there is a surplus fund in court, after a foreclosure against an executor, a creditor who has obtained a surro- gate's decree against the estate will be preferredl to legatees who claim the fund. (Clark's Case, 15 Abb. 277 [Sp. T. 1862].) Judgment confessed for partnership debt.] A judgment confessed by two partners, in a firm consisting of three, to secure a partnership debt, is entitled to priority over subsequent judgments recovered' against all the mem- bers of the firm. (Stevens v. Bank of Central New York, 31 Barb. 290 [Gen. T. 1859].) Subsequent incumbrancer, without notice — has no claim upon sur- plus.] A subsequent incumbrancer has no claim upon the surplus moneys arising from a sale under a statute foreclosure, of which he had no notice. (Wiuslow v. McCall, 32 Barb. 241 [Sp. T. I860]; Root v. Wheeler, 12 Abb. 294 [Sp. T. 1861]; Mutual Life Ins. Co. v. Truchnicht, 3 Abb. X. C. 135 [1877].) — ■ — ■ Unless he releases to the purchaser all future claim upon the equity of redemption. (Waller v. Harris, 7 Paige, 168 [1838].) Where a general creditor applies he should be made a party to the pro- ceeding. (German Savings Bank v. Sharer, 25 Hun, 409 [1881].) Where second mortgagees have priority over judgment creditors whose judgments are prior in date of docket.] (Tallman v. Farley, 1 Barb. 280 [Sp. T. 1847]. See Ray v. Adams, 4 Hun, 332 [1875] ; Cook v. Kraft, 6 Barb. 410 [Gen. T. 1871]; S. C, 3 Lans. 515.) A junior mortgage taken as collateral security for another obligation.] (Soule V. Ludlow, 3 Hun, 503 [1875].) An unrecorded mortgage has priorty over a subsequent judgment.] •(Thomas v. Kelsey, 30 Barb. 268 [Gen. T. 1859].) The mortgage first recorded is presumptively the prior lien.] (Free- man V. Schroeder, 43 Barb. 618 [Gen. T. 1864] ; S. C, 29 How. Prac. 263.) Such presumption may, however, be overcome.] (Freeman v. Schroeder, 43 Barb. 618 [Gen. T. 1864]; S. C, 29 How. Prac. 263.) Purchasers of land sold under execution have priority over junior judg- ments.] (Shephard v. O'Neil, 4 Barb. 125 [Sp. T. 1848].) Distribution of — notice of claims.] Distribution of a surplus fund arising on a foreclosure; what claims may be considered by the referee; notice must be given to all persons interested in the fund. (Kingsland v. Chetwood, 39 Hun, 602 [1886].) Necessity of notice to creditors of deceased mortgagor.] Notice of application for surplus moneys in foreclosure must be given to the creditors Eule 64] Genebal Eules of Peaotice. 399 of a decedent who was in his lifetime entitled to such moneys when the claim- ant instituting the proceeding knew the facts constituting the lieu of the creditors upon the fund. (Felts v. Martin, 20 App. Div. 60 [1897]; German Savings Bank v. Sharer, 25 Hun, 409 [1881].) Tenant for years — has an equitable interest in.] A tenant for years has an equitable interest, to the extent of the value of the remainder of his term, in the surplus moneys arising upon a sale under a mortgage prior to his lease where the lease is cut off by the foreclosure. ( Clarkson v. Skidmore, 46 N.' Y. 297, affirming 2 Lans. 238.) It goes to the heirs of the mortgagor.] Where one dies seized of real estate incumbered by a mortgage which is thereafter foreclosed and the land sold, any surplus arising on the sale is to be regarded as realty and goes to the heirs of the devisees, not to an administrator, and an administrator cannot maintain an action to recover the same, and this is so although the mortgage provides that the s-urplus shall be paid to the mortgagor, his executors or administrators. (Dunning v. Ocean National Bank, 61 N. Y. 497 [1875].) Surplus money stands in place of land sold — widow's dower.] The surplus moneys arising on a sale of land, under a mortgage foreclosure, stand in the place of the land in respect to those having liens or vested rights therein; and the widow of the owner of the equity redemption is entitled to dower in the surplus as she was before in the land. (Matthews v. Duryee, 45 Barb. 69 [Gen. T. 1864] ; S. C, 17 Abb. 256; Elmendorf v. Lockwood, 4 Lans. 396 [Gen. T. 1871]; Blydenborgh v. Northrop, 13 How. Prac. 289 [Sp. T. 1856]; Fliess v. Buckley, 22 Hun, 551 1880].) When the value of an inchoate right of dower will not be paid to the husband.] The sole persons interested in a surplus arising on a mortgage foreclosure sale being the owner of the equity of redemption, and his wife, who had an inchoate right of dower in the mortgaged premises, two-thirds of the money were paid to the husband, and the remaining one-third was deposited in court to secure the inchoate dower interest of the wife, who had obtained a judgment of separation from her husband and was dependent upon alimony awarded her thereby. Held, that, under the circumstances, the court should not direct the pay- ment of the money so deposited to the husband upon the execution of a bond with two sureties conditioned upon the payment to the wife, in case she sur- vived the husband, of the income of the money during her life. Semble, that in a proper case the court, in its discretion, might make such an order. (Emigrant Industrial Savings Bank v. Regan, 41 App. Div. 523 [1899].) What liens share in surplus.] Only liens in existence at the time of the sale and conveyance are transferred to the surplus moneys arising there- from ; and a judgment which has ceased to be a lien by the lapse of more than ten years from date of its entry is not entitled to share in such surplus. (Nutt V. Cuming, 155 N. Y. 309 [1898].) The filing of a lis pendens creates no lien.] The filing of a Us pendens without a complaint does not create a lien upon the landl described in the Us pendens which will entitle the person filing the same to share in the surplus 400 CouKTs OF Eecoed. [Rule 64 arising from the sale of the land in foreclosure. (Albro v. Blume, 5 App. Div. 309 [1896].) The owner of an easement in the premises sold is entitled to share in the surplus.] The owner of an easement in the mortgaged property, which easement extinguished by the foreclosm-e proceedings, is entitled to share in the surplus arising on a foreclosure sale. (Winthrop v. Welling, 2 App. Div. 229 [1896].) Mortgages given by a life tenant and by remaindermen — distribution of surplus arising on a foreclosure thereof.] Where the life tenant of certain premises and the two remaindermen execute mortgages thereon, which recite that the life tenant and the remaindermen are indebted to the mortgagee in the sum named in the mortgages, and it does not appear who received the money obtained upon the mortgages, nor to what purposes it was applied, the presumption is, as between the three mortgagors, that they were each liable for one- third of the debt, and in surplus money proceedings, instituted after the foreclosure of the mortgages upon a default in the payment of interest, the life tenant is chargeable with the unpaid taxes and with one-third of the interest and the remaindermen with the other two-thirds of the interest, the costs and expenses of the foreclosure being deducted from the proceeds of sale before any division is made. (Fosdick v. Lyons, 38 App. Div. 608 [1899].) Inchoate right of dower.] A woman having an inchoate right of dower in surplus moneys arising on a foreclosure sale is not entitled to a gross sujn in lieu of such right. ( Citizens' Savings Bank v. Mooney, 26 Misc. Eep. 67 [1899].) Effect of former judgment.] In proceedings instituted to obtain surplus moneys arising from the foreclosure of a first mortgage upon certain lands it was shown that in an action brought against the person who executed the second mortgage upon the property sold under the foreclosure, and who claimed to own it, it was adjudged that the plaintiff therein was entitled to an undivided one-half interest in and to the mortgaged premises. In an action commenced nearly two years after the second mortgage had been recorded, the second mortgagee not being made a party thereto. Held, that such judgment would not affect the right to such surplus moneys of the second mortgagee, who was not a party to such action, if the mortgagor was the apparent legal owner of the premises in question at the time the second mortgage was given. (Mechanics' Savings Bank v. Selye, 83 Hun, 282 [1894].) A pending prior action, not a bar to a proceeding to distribute sur- plus moneys.] On the payment into court of surplus moneys arising upon a mortgage foreclosure, one of the defendants in the action claimed the same as junior mortgagee, and moved for a reference to determine claims thereto; this claim and motion were resisted by certain other defendants, on the ground that there was a prior action pending, in which the right of the claimant was being contested, and in which a complete adjudication could be had. It ap- peared that in this prior action commenced by the mortgagor and then owner of the mortgaged premises, since deceased, against the claimant, an inter- locutory judgment had been entered declaring an instrument executed by the Eule 64] General Eules of Practice. 401 owner to the claimant in form of a deed to be a mortgage, and appointing a referee to ascertain the amount due the claimant thereunder ; that it was upon this mortgage that the claimant based his claim to the surplus moneys, and that after the entry of said interlocutory judgment, the plaintiff in the action in which it was rendered, died, and the action had never been revived, and had since remained in a condition in which no accounting could be had therein. Held, that such prior action was not a bar to the proceeding for the dis- tribution of surplus moneys, and that the claimant was entitled to a reference. (Baker v. Baker, 70 Hun, 95 [1893].) When a claimant is not barred from application for a reference by a summons served upon another claimant.] A motion for a reference to ascer- tain the amount due the respective claimants of surplus money resulting from the sale of real estate was denied' on the ground that the moving party had already been served with a summons in an action brought to determine the rights of the parties to cuch fund. This is no reason for denying a similar motion by another claimant who has not been served with the summons in said action. (Toch v. Toch, 8 App. Div. 299 [1896].) Court has no power to displace a prior lien in favor of a subsequent one.] Upon application for surplus moneys arising on foreclosure sale, it appeared that there were two mortgages which were liens upon the premises sold subsequent to the mortgage foreclosed; the senior one also covered other lands, which the proof showed and the referee found were of value more than sufficient to satisfy the mortgage, and the junior mortgage only covered those premises. Held, that the court had no power to displace the prior lien in favor of the junior mortgage, and to compel the owner of the former to resort to the other lands covered by it to obtain payment. (Quackenbush v. O'Hare, 129 N. Y. 485 [1892].) Form of orders for paying out.] One entitled to surplus money is not aggrieved by an order requiring the referee to pay off liens upon proof thereof being made in a manner specified in the order, and without requiring payment first to be made by the purchaser. (Easton v. Pickersgill, 55 N. Y. 310 [1873].) Judgment — secured on appeal.] When, while a judgment is marked " secured on appeal," a mortgage is given on property on which it would other- wise be a lien, and such judgment is thereafter by the court restored as a lien thereon, the mortgage is entitled to priority of payment out of the surplus money arising from the foreclosure of a prior mortgage. (Union Dime Sav- ings Institution v. Duryea, 3 Hun, 210 [1874].) Lapse of judgment lien before foreclosure sale.] If, at the time of the sale in a mortgage foreclosure, ten years have elapsed since the lien of the junior judgment lienor attached, such a lien is not payable out of the surplus, even though ten years had not elapsed at the time of the judgment in fore- closure. (Nutt V. Cuming, 155 N. Y. 309 [1898].) Notice of application to confirm report of referee though no exceptions te filed.] Notice of motion to confirm referee's report must be given to all parties who appear in the action or have filed' with the clerk notice of claim, 26 402 CouETs OF Eecoed. [Rule 64 though the referee's report has been filed and notice of its making and filing has been given, and no exceptions have been filed thereto. Rule 30 not applicable to these proceedings in so far as it is in conflict with Eule 64. (Van Voast v. Gushing, 32 App. Div. 116 [1898].) Surplus moneys — on a sale on foreclosure to be regarded as realty — where an action relating to them must be brought — Code of Civil Procedure, § 982.] (Fliess V. Buckley, 22 Hun, 551 [1880] ; American Life Ins. & Trust Co. V. Van Eps, 56 N. Y. 601 [1874] ; Matter of Knapp, 25 Misc. 133 [1898].) A claim may be presented and established by the plaintiff as well as by any other person.] (Field v. Hawxhurst, 9 How. Prac. 75 [Sp. T. 1853].) Distribution of — rights of junior mortgagees considered.] (Oppen- heimer v. Walker, 3 Hun, 30 [1874].) PROCEEDINGS ON REFERENCE — It is a special proceeding.] The dis- tribution among rival claimants of the surplus money arising on a mortgage foreclosure by action, is a special proceeding, and is governed by Rule 64 of the Supreme Court; the reference is one to hear and determine, subject to con- firmation by the court, which has ample power to confirm, set aside or to refer back the report, but it is not authorized to make new findings or to change those already made. (Mutual Life Insurance Co. v. Anthony, 23 X. Y. Wkly. Dig. 427 [Sup. Ct. Gen. T. 1886].) Order of reference — Object of.] The order of reference usually made to report as to the liens and claims against surplus money is not granted' for the investigation and determination of contested claims. (Union Dime Sav- ings Institution v. Osley, 4 Hun, 657 [1875].) Referee may inquire as to the validity of liens and conveyances.] Upon a reference as to surplus moneys in an action for foreclosure, the referee has authority to inquire as to the validity of conveyances or liens, and convey- ances as well as liens may be attacked as fraudulent. (Bergen v. Carmen, 79 N. Y. 146 [1879]. See Halsted v. Halsted, 55 id. 442 [1874]. See, contra, Snedecker v. Snedecker, 18 Hun, 355 [1879] ; Husted v. Dakin, 17 Abb. 137 [Sp. T. 1857]; Tator v. Adams, 20 Hun, 131 [1880].) Power of referee to determine claims arising under a second mortgage.] The referee appointed in proceedings for the distribution of surplus moneys arising on a foreclosure sale has power to determine the amount due under a second mortgage given by the mortgagor to secure the second' mortgagee against any loss arising from the breach of a contract between the mortgagor and the second mortgagee. (Gutwillig v. Wiederman, 26 App. Div. 26 [1898].) Usury — may be set up by junior as against senior claim.] The holders of a fourth mortgage may set up, before the referee, usury in a third mortgage. (Mutual Ins. Co. v. Bowen, 47 Barb. 618 [Gen. T. 1866].) Certificate of clerk.] The party prosecuting the reference must pro- duce a certificate of the clerk, with whom the report is filed andi the surplus money deposited, showing that no notice of claim to such surplus was annexed to the report of sale, and that no claim to the same has been filed previous to the entry of the order of reference; or, if claims have been filed, stating the names of the claimants, and of their solicitors, if any, and their places of resi- dence. (Hulbert v. McKay, 8 Paige, 651.) Eule 64] General Rules of Peactice. 403 - — Duty of referee.] The referee should ascertain, by the proper certifi- cates and other evidence, that all claimants and other proper parties have been notified or summoned to attend before him on such reference, and the fact that such certificate and other evidence was produced before him, should be stated in his report. (Hulbert v. McKay, 8 Paige, 051.) Neglect to file notice of claim.] An incumbrancer, who has neglected to file his notice of claim, may go before the referee and file his claim before him duly verified, and he will then be entitled to be heard upon such terms as to costs as the referee shall direct. (Hulbert v. JIcKay, 8 Paige, 651.) Proof of claim.] The claims must be verified, and the referee may examine the claimants upon oath touching their claims. (Hulbert v. McKay, 8 Paige, 651.) Power of court over referee's report.] Upon the coming in of the report of a referee appointed to ascertain the rights of claimants to surplus moneys produced on a sale under a decree of foreclosure, the court has the most ample power to confirm, set aside or refer back the same for further proofs as to its conscience shall seem just and equitable. While the moneys remain in the court undisturbed, the court may at any time vacate the order confirming the report, and refer the matter back to the referee for further proof. (Mutual Life Ins. Co. v. Salem, 3 Hun, 117 [1874] ; Mutual Life Ins. Co. V. Anthony, 23 Wkly. Dig. 427 [Sup. Ct. Gen. T. 1886].) Notice of application to confirm report.] Under Rule 64 of the Gen- eral Rules of Practice it is necessary, on an application to confirm the report of a referee in surplus money proceedings, to give notice of such application to every party who has appeared in the foreclosure action or who has filed with the clerk notice of a claim to such surplus money, although the report of the referee has been filed and notice of its making and filing has been given, and no exceptions have been filed thereto. Rule 30 of the General Rules of Practice, so far as it confiicts with rule 64, applicable in this respect to such a proceeding. (Van Voast v. Gushing, 32 App. Div. 116 [1898].) Default in appearing on reference.] One having a lien but who fails to appear was allowed to open default upon filing an undertaking to pay costs in case she fails to establish her lien, held error. (Irving Savings Inst, v. Smith, 100 App. Div. 460.] APPEAL — Order as to surplus moneys — when reviewable in the Court of Appeals.] When an order of the General Term, reversing an order of the Spe<;ial Term as to the disposition of surplus moneys in a foreclosure suit, and sending the case back to the referee, imposes costs absolutely, it is in this respect a final decision, and an appeal can be taken therefrom to the Court of Appeals. (Bergen v. Carmen, 79 N. Y. 146 [1879].) What order is not final and is not appealable to the Court of Appeals.] An order of the General Term reversing an order of the Special Term, which confirms a report of a referee appointed to determine as to conflicting claims to surplus moneys arising on a foreclosure sale, and ordering a new hearing before another referee, is not reviewable in the Court of Appeals. (Mutual Life Ins. Co. v. Anthony, 105 N. Y. 57 [1887].) 404 CoTJKTS OF Eecoed. [Rule 65 COSTS — What costs are allowable.] In proceedings as to the surplus moneys arising on sale of mortgaged premises, motion costs and reference fees ■only can bei allowed. (Wellington v. Ulster County Ice Co., 5 N. Y. Wkly. Dig. 104 [Sup. Ct. 1877] ; McDermott v. Mallory, 9 Hun, 59 [1876].) Suitable compensation allowed.] The court has authority to allow a suitable compensation for costs and disbursements out of the funds. (N. Y. Liie Ins. & Trust Co. v. Vanderbilt, 12 Abb. 458 [Sp. T. 1861]; Elwell v. Kobbins, 43 How. Prac. 108 [Sp. T. 1872].) Unsuccessful claimant to surplus moneys — chargeable with costs.] TJiiSuccessful claimants will be charged with the extra costs occasioned by their claims, where the claim of the successful party is just, and the amount of the surplus small, and a large amount of unnecessary costs has been occasioned in litigation. (Lawton v. Sager, 11 Barb. 349 [Sp. T. 1851]; Bevier v. Sohoonmaker, 29 How. Prac. 411^22 [Gen. T. 1864].) RULE 65. Partition to Embrace all Lands in Common. Where several tracts or parcels of land lying within this State are owned by the same persons in common, no separate action for the partition of a part thereof shall be maintained without the consent of all the parties interested therein; or without the special order of the court, made on notice to all parties who have appeared in the action, to be obtained before application for the relief demanded in the complaint ; and if brought without such a consent or order, the share of the plaintiff may be charged with the whole cost of proceeding; and where infants are interested, the complaint shall state whether or not the parties owned any other lands in common. Rule 77 of 1858. Rule 78 of 1871. Rule 78 of 1874. Rule 69 of 1877. Rule 65 of 1880. Rule 65 of 1884. Rule 65 of 1888. Rule 65 of 1896, Rule 65, as amended 1910. CODE OF CIVIL PROCEDURE. f 340. AVhen the County Courts have jurisdiction of an action for partition. I 447. Who are proper parties defendant. % 473. Guardian ad litem for infant defendant who is a nonresident or is temporarily absent, f 982. The action must be tried in the county in which the subject of the action or some part thereof is situated. |§ 1532-1595. Provisions relative to actions for partition. §§ 3252-3253. Additional allowances in partition actions. Eule 65] General Edles of Peactioe. 405 § 3297. Fees of referee on sale. § 3307. Fees of sheriff on sale. PARTITION — No inherent power in the court.] The Supreme Court has no inherent power to partition and sell the real estate of infants; proceedings for that purpose must be authorized by the Legislature. (Muller v. Strupp- man, 6 Abb. N. C. 343 [Sp. T. 1878].) Supreme Court — jurisdiction of.] The Supreme Court sitting at Special Term has all the judisriction, both legal and equitable, conferred by statute on the Court of Chancery and the former Supreme Court in pro- ceedings for partition, and is to conduct the same, so far as they are appli- cable, in conformity with the provisions of the Revised Statutes. (Hewlett v. Wood, 3 Hun, 736 [1875].) Action of partition to try title — allegations as to adverse title.] A plaintiff, seeking to try the title to land in an action of partition, is bound, under section 1542 of the Code of Civil Procedure, if cognizant of the facts upon which the adverse title is based, to allege such facts in his complaint; if ignorant thereof, he must aver his ignorance, in which event the adverse- claimant must present his rights by answer. (Satterlee v. Kobbe, 39 App. Div. 420 [1899]. As to shares of infants. (Levine v. Goldsmith, 71 App. Div. 204 [1902].) Specific liens on undivided shares should be determined by the inter- locutory judgment.] Persons having specific liens, which appear of record as distinguished from general liens upon undivided shares of parties to a partition action, being necessary parties under section 1578 of the Code of Civil Procedure, the validity, priority and amount of such liens may properly be litigated before the referee, appointed to ascertain and report the rights, shares and interests of the several parties, and whether the land should be partitioned or sold, etc., and should be determined by the interlocutory judg- ment. (Winfield v. Stacom, 40 App. Div. 95 [1899].) No exceptions need be filed to the referee's report.] Upon notice of the application for the confirmation of the report and for the entry of an interlocutory judgment thereon, the parties in interest are entitled to be heard upon any question adjudicated in the report, and which may properly be disposed of by the interlocutory judgment. The filing of exceptions to the report of a referee, appointed in a partition action, is unnecessary to entitle the interested party to attack the report. (76.) Lien upon premises partitionea — now asserted.] A party to an action of partition who claims a lien upon the premises must allege it in his answer and establish it by proof; the court has no power to amend the final judgment so as to direct the referee to pay him the amount of the alleged lien out of the proceeds of sale, as such an amendment would vary the rights of the parties as fixed by the decision of the court and the judgment entered thereon. (Smith v. Smith, 40 App. Div. 251 [1899].) Cotenant out of possession may maintain partition.] Semble, that the modern tendency has been to relax the previous rule and to permit a 406 CouETS or Piecoed. [Rule 65 disseized cotenant to have his right and title determined in an action for partition. (Holder v. Holder, 40 App. Div. 255 [1899].) Consolidation of actions for partition.] The Supreme Court cannot consolidate two actions for partition wliere the land described in one suit is situated in a different county from that described in the other suit, and where one or more parties in one suit are not parties to or interested in the other. (Mayor v. Coffin, 90 N. Y. 312 [1882].) When a sale, instead of actual partition, will be ordered.] Where several parcels of land are covered by one large mortgage which it would be diiBcult to apportion, and the division which exists by separate buildings makes it more valuable than it would be as a whole, with the privilege of improving it, a sale should be allowed which would produce eleven or twelve j)er cent net instead of an actual partition. (David v. David, 31 St. Rep. 116 ISup. Ct. 1890].) Issues tried in a partition suit — exceptions, where considered.] As the Code of Civil Procedure provides (§ 1544) that issues of fact in an action for partition are triable by a jury, the trial court may not disregard the findings of the jury. Exceptions taken, therefore, on the trial before the jury may be considered on appeal from the judgment. (Jones v. Jones, 120 N. Y. 589 [1890].) Issues tried by a jury — motion for a new trial under section 1544 of Code of Civil Procedure, improper.] In an action for partition it was ordered that the issues of fact be tried at Circuit, and certain questions were framed to be answered by the jury. Trial was so had, the questions were answered by the jury and upon written consent of all parties it was directed that the further hearing of the action should be before the court at Special Term. Upon such hearing the court made findings and conclusions of law incorpo- rating in the former the findings of the jury, and an interlocutory judgment was entered thereon. Held, that a motion for a new trial at General Term was properly dis- missed; that the issues in the action were triable by a jury as matter of right. (Code Civil Procedure, § 1544.) That the facts found by the jury were binding upon the Special Term; and so, the trial was not by the court without a jury within the meaning of the Code of Civil Procedure (§ 1001) authorizing a motion for a new trial after entry of an interlocutory judgment, where the decision " upon trial of an issue of fact by the court" directs such a judgment. (Bowen v. Sweeney, 143 N. Y. 349 [1849].) The interlocutory judgment should provide for existing liens.] An Interlocutory judgment entered in an action of partition which makes no provision for a judgment whieli is an apparently valid Uen on the undivided share of one of the parties is irregular, and the assignee of the judgment is entitled to have it set aside upon motion. (Kelly v. Werner, 34 App. Div. 68 [1898].) Order confirming sale cures all prior irregularities.] The final order of confirmation of sale in n partition suit has the force and effect of a judg- Kule 66] General Rules of Peactice. 407 ment which binds the parties, where there is complete jurisdiction, whatever irregularities or errors may have preceded it. (Woodhull v. Little, 102 N. Y. 165 [1886].) Jurisdiction of court is confined to property described in complaint.] A suit in partition is a proceeding in rem and the jurisdiction of the court is confined to the property described in the complaint. (Sandford v. Town of Hempstead, 97 App. Div. 163.) PROCEEDS OF SALE — When real estate.] Proceeds of sale in par- tition of the estate of an infant defendant are considered as real estate. (Denham v. Cornell, 7 Hun, 664 [1876]; In the Matter of Thomas, 1 id. 475 [1874].) ALLEGATION AS TO OTHER LANDS — Omission to allege that the parties own no other land in common.] The omission of a plaintiff to allege that the parties do not own any other land in common in this State is not a groimd of demurrer. Effect of a failure to comply with this rule in this respect. (Pritehard v. Uratt, 32 Hun, 417 [1884].) Motion to include other lands — bill of particulars thereof — plaintiff required to pay costs.] Where, in action for the partition of lands, the de- fendants deny that the premises described in the complaint were the only lands, real estate or interest therein within the States owned in common by the parties to the action, and refuse to give any information concerning such other lands, the court may properly require such defendants to furnish a bill of particulars of the other lands of which, it is claimed, the parties were seized in common. Semble, under Rule 65, if there are parcels of land not included in the action, the plaintiff may be subjected to the whole of the costs of the action. (Grossman v. Wyckoff, 32 App. Div. 32 [1898].) 'Dismissal of the complaint in partition.] 'VSTiere the plaintiff in a partition suit fails to embrace therein all lands held by the parties in com- mon, the complaint will be dismissed under the provisions of Rule 65. (San- ford V. Goodell, 82 Hun, 369 [1894]. See, also, Beetson v. Stoops, 91 App. Div. 185, and Sandiford v. Town of Hempstead, 97 App. Div. 163.) RULE 66. Reference as to Title and Sale in Actions for Partition of Real Property. Where the rights and interests of the several parties, as stated in the complaint, are not denied or controverted, if any of the de- fendants are infants or absentees, or unknov^n, the plaintiff, on an affidavit of the fact, and notice to such of the parties as have appeared, may apply at a Special Term for an order of reference, to take proof of the plaintiff's title and interest in the premises, and of the several matters set forth in the complaint ; and to ascer- tain and report the rights and interests of the several parties in the premises, and an abstract of the conveyances under which the ■iOS CouETS OF Eecoed. [Rule 6T same are held. Sueh referee and the referee appointed to sell shall in all cases be selected by the court. Rule 78 of 1858. Rule 79 of 1871. Rule 79 of 1874, amended. Rule 70 of 1877, amended. Rule 66 of 1880. Rule 66 of 1884. Rule 66 of 1888. Rule 66 of 1896. Rule 66 of 1900, amended. See notes under Rule 65. CODE OF CIVIL PROCEDURE. § 1545. When and how the interests of infants and nonappearing or non- answering defendants are ascertained. ABSTRACT OF TITLE — To be produced on reference.] The referee should require tlie complainant to produce abstracts of title as a tenant in common in the premises, and to trace it back to the common source of title of the several tenants in common, and he should give an abstract of the conveyances of the several undivided shares of the parties in the premises from the time the several shares were united in one common source. Hamilton v. Morris, 7 Paige, ?9 [1837].) Need not be annexed to report.] If the referee states explicity that he has caused the necessary searches to be made, and certifies what incum- brances there are, it is isufficient, and he is not required to annex to his report a search for mortgages, etc., affecting the title. (Noble v. Cromwell, 27 How. Prac. 289 [Court of Appeals, I860]; S. C, below, 26 Barb. 475; 6 Abb. 59.) REFEREE — Report of — how corrected.] Where, under an order of refer- ence in a partition sviit, " to inquire and report," the referee reports correct findings of fact, but erroneous conclusions of law thereon, upon the coming in of the report, the Special Term is not required to send it back for correction, but may, without exceptions, or independent of them, draw the proper legal conclusions from the facts. (Austin v. Ahearne, 61 N. Y. 6 [1874].) Power of, as to incumbrances.] The referee is authorized to take proof and pass upon the question as to the validity of a mortgage upon an undivided share claimed by one of the parties, although there is no issue in the pleadings raising the question. (Halsted v. Halsted, 55 N. Y. 442 [1874]. See Code of Civil Procedure, § 1562.) Report as to whether an actual partition can be had.] (Walter v. Walter, 3 Abb. N. C. 12 [1877].) RULE 67. Stay of Sale in Partition or Foreclosure — Notice. ISTo order to stay a sale under judgment in partition or for the foreclosure of a mortgage shall be granted or made by a judge Rule 67] General Eules of Peactice. 409 out of court, except upon a notice of at least two days to the plaintiff's attorney. Eule 80 of 1858. Rule 81 of 1871. Rule 81 of 1874. Rule 72 of 1877. Rule 67 of 1880. Rule 67 of 1884. Rule 67 of 1888. Rule 67 of 1896. CODE OF CIVIL PROCEDURE. § 775. Stays granted by a judge out of court — when not to exceed twenty days. STAY OF PROCEEDINGS — Order containing stay and returnable in less than two days — irregular.] An order to show cause, if made by a judga out of court and returnable in less than two days, is irregular if it contains a stay of proceedings of sale under judgment in partition or foreclosure. (Asinari v. Volkening, 2 Abb. N. C. 454 [1877].) By a party not in possession nor adjudged liable for a deficiency.] A person appealing from a judgment of foreclosure and sale, who is not in possession of the mortgaged premises, nor one against whom a judgment for deficiency has been awarded, is not entitled to a stay under section 1331 of the Code of Civil Procedure; if such a party desires a stay he should apply under sections 1351 and 1352 of that Code. (Rosenbaum v. Tobler, 31 App. Div 312 [1898].) Foreclosure sale of an undivided interest — when not stayed.] A sale in foreclosm-e of an undivided interest in certain lands will not be stayed at the instance of the mortgagor, to the end that the premises may be sold under the judgment to be entered in an action of partition, in which the mortgagor is the plaintiff, solely because, in the opinion of an expert, a better price will be obtained by the mortgagor upon a sale of the whole property than she is likely to realize from the sale of her undivided quarter interest under the judgment in foreclosure. (Bradford v. Downs, 24 App. Div. 97 [1897].) Sale not stayed to await the determination of condemnation proceed- ings.] A sale in foreclosure will not be stayed at the instance of a junior mortgagee until the conclusion of condemnation proceedings affecting the mort- gaged premises — certainly where the moving party fails to give security that the property will finally sell for sufficient to cover the plaintiff's demand. (Weekes v. McCormick, 16 App. Div. 432 [1897].) When a stay may be granted by a judge out of court.] A judge out of court may, under section 775 of the Code of Civil Procedure, grant an order staying a sale in foreclosure pending an appeal to the Court of Appeals from the judgment of foreclosure by purchasers of the mortgaged property who pur- chased after the execution of the mortgage and were not liable for any de- ficiency, and who surrendered possession of the premises to the mortgagee prior to the entry of the judgment. (Mutual Life Insurance Company v. Robinson, 23 Misc. Rep. 363 [1898].) 410 Courts of Eecoed. [Rule 68 Undertaking conditioned against waste — when effective as a stay,] An undertaking under section 1331 of the Code, conditioned against the com- mission of waste, is effectual as a stay on appeal from a judgment of fore- closure only where the appellant giving it is in possession of the property. (Commercial Bank v. Foltz, 35 App. Div. 237 [1898].) RULE 68. Payment of Money into Court — Designation of Trust Companies — Filing Order, etc., with County Treasurer — Chamberlain of New York City. Rule 68 repealed, 1910. CODE OF CIVIL PROCEDURE. § 744. Comptroller to prescribe rules and regulations for the care and dis- position of moneys paid into court, which shall be binding in the absence of special directions by the court into which the money was paid. § 745. Money to be paid to county treasurer (unless otherwise directed), and securities to be taken in his name. § 746. Funds, where and how deposited or invested. § 747. Power of each court by special order, to direct the disposition or in- vestment of moneys paid into it. § 749. Power of certain officers to bring actions relative to money paid into court. § 750, On death or expiration of official term of county treasurer, securities and money paid into court vest in his successor. § 751. Authority for paying out money paid into court. § 1563. When proceeds of sale of a share in partition paid into court. § 15<34. Application therefor — what papers to be presented on. § 1565. Satisfaction of liens on an undivided share. § 1740. When the surplus arising on sale of chattels, in actions to foreclose a lien thereon, is to be paid to the county treasurer. § 1967. District attorney to pay over money collected to county treasurer. § 2116. Governor to pay into court damages ascertained under writ of assess- ment of damages for real property taken by the State. § 2117. Investment of such money. § 2118. How such money is obtained by the claimant. § 2537. Money and securities in Surrogate's Court, to be deposited with county treasurer. § 2748. Legacy, when to be paid over to county treasurer. § 2786. Money arising on sale of real estate of a deceased person to pay debts to be paid to county treasurer. Kule 69] Geneeal Eules of Peactice. 411 ♦CHANCERY RULE — Investment.] The Chancery Rule (180) providing for the investment of funds paid into court is still in force, modified by the General Rules of Practice. (Chesterman v. Eyland, 81 N, Y. 398 [1880].) Payment to a referee.] The payment of money to a referee is not payment into court. (Becker v. Boon, 61 N. Y. 317 [1874].) OfScer protected in paying.] An officer who has been enjoined from paying money out of a court is protected in paying under an ex parte order, although unfairly obtained. (People ex rel. Morris v. Randall, 73 N. Y. 416 [1878].) Payment into court.] The rule as to payment into court is applied by courts of equity according to the equities of each case. (Wood v. Rabc, 52 N. Y. Supr. Ct. 20 Jones & S. 479 [Gen. T. 1885].) Payment into court — proper practice.] The proper practice to adopt in the case of the payment of money into court considered. (Wilson v. Doran, 39 Hun, 88 [1886].) RULE 69. Order for Payment out of Court; Accounts with Trust Companies; Draft to be Countersigned by Justice; What to be Stated in Draft. All orders directing the payment of money out of court shall direct the payment to be made to the person entitled to receive the same, and all checks or drafts for the payment of money out of court shall be drawn payable to the order of the person entitled to the moneys ; and shall specify in what particular suit or on what accoimt the money is to be paid out, and the time when the order authorizing such payment was made. No order in any pending * Chancery Eule 180. — Whenever a party, as tenant for life, or by the curtesy, or in dower, is entitled to the annual interest or income of any sum paid into court and invested in permanent securities, such party shall be charged with the expense of investing such sum and of receiving and paying over the interest or income thereof, but if such party is willing, and consents to accept a gross sum in lieu of such annual interest or income for life, the same shall be estimated according to the then value of an annuity of six per cent, on the principal sum during the probable life of such person, according to the Portsmouth or Northampton tables. And where money belonging to an infant or an absentee, or to an unknown owner, is brought into court for his benefit, under a final decree in partition, if no direction for the Investment thereof Is contained in the decree, and the money Is not applied for within six months thereafter. It shall be the duty of the register, assistant register., or clerk with whom the same is deposited, and without any special order for that purpose, to cause it to be invested in the public stocks or other permanent securities, or in the New York Life Insurance or Trust Company, to accumulate for the benefit of the party entitled thereto. He may also in like manner reinvest the income of such money, from time to time, without aof special order for that purpose, when- ever, in his opinion, the amount of such income is sufficient to render an investment thereof proper and beneficial to the person interested therein. And where money is brought into court, upon the sale of an Infant's estate by a special guardian, if the infant will not arrive at age within six months thereafter, it shall be the duty of the register, assistant register, or clerk, to whose credit such money is deposited In hank, without any special order of the court for that purpose, to deposit such money in the Trust Company to accumulate, or to Invest the same in the puljlic stocks of this State or of the United States ; or to Invest it upon bond and mortgage on unincumbered real estate of double the value, exclusive of buildings, payable when the Infant becomes of age, or sooner If required to be paid by the order of the court, with interest to be paid annually or semi-annually ; and to reinvest the same from time to time as above directed. 412 CouKTS OF Recoed. [Eule 69 action, for the payment of money out of court, shall be made, except on regular notice or order to show cause, duly served on the attorneys of all the parties who have appeared therein, or filed notice of claim thereto. When moneys are deposited by the order of the court in any trust company, the entry of such deposit in the books of the company shall contain a short reference to the title of the cause or matter in which such deposit is directed to be made, and shall specify also the time from which the interest or accumulation on such deposit is to commence, where it does not commence from the date of such deposit. The secretary of the company shall, on or before the first day of February in each year, transmit to the Appellate Division of the Supreme Court in the department in which the trust company is located, a statement of the accounts in each department, showing the amount, on the last preceding first day of January, including the interest or ac- cumulation on the sum deposited to the credit of each cause or matter. In every draft upon the trust company by the county treasurer or chamberlain, for moneys deposited vsdth the said company, or for the interest or accumulation on such moneys, the title of the cause or matter on account of which the draft is made, and the date of the order authorizing stich draft shall be stated, and the draft shall be made payable to the order of the person or per- sons entitled to the money. Any attorney or other person pro- curing an order for the payment of money out of court, shall obtain two certified copies of the order, both to be countersigned by the judge granting the same; one copy shall be filed with the county treasurer and the other shall accompany the draft drawn upon the depository and be filed with it, and the several banks and other depositories having trust funds of the court on deposit, are forbidden to pay out any of such funds without the production and filing of such certified and countersigned copy order. This pro- vision is not intended to dispense with any of the requirements of this rule, as to the form of the draft, nor to apply to a case where periodical payments are directed to be made, as provided for by the last sentence of this rule, after the first payment from such fund shall have been made under an order of the court, in the manner herein specified. Where periodical payments are di- rected to be made out of a fund deposited with such company, Kule 70] General Eules of Practice. 413 the delivery to the secretary of the company of one copy of the order authorizing the several payments shall he sufficient to authorize the payment of subsequent drafts in pursuance of such order. Rule 83 of 1858, amended. Rule 84 of 1871, amended. Rule 84 of 1874. Rule 75 of 1877. Rule 70 of 1880, ajnended. Rule 70 of 1884, amended. Rule 70 of 1888, amended. Rule 69 of 1896. Rule 69, as amended 1910. See note under Rule 68. CODE OF CIVIL PROCEDURE. §§' 743-754. Payment into court, and care and disposition thereof. RTJIE 70. Gross Sum in Payment of Life Estate — How Ascertained. Whenever a party, as a tenant for life, or by the curtesy, or in dower, is entitled to the annual interest or income of any sum paid into court and invested in permanent securities, such party shall be charged with the expense of investing such sum, and of receiving and paying over the interest or income thereof; but if such party is willing, and consents to accept a gross sum in lieu of such annual interest or income for life, the same shall be esti- mated according to the then value of an annuity of five per cent. on the principal sum, during the probable life of such person, according to the Carlisle Table of Mortality. Rule 84 of 1858, amended. Rule 85 of 1871. Rule 85 of 1874. Rule 76 of 1877, amended. Rule 71 of 1880. Rule 71 of 1884. Rule 71 of 1888. Rule 70 of 1896. Rule 70 of 1900, amended. CODE OF CIVIL PROCEDURE. § 1553. What provision is made in an action for partition for dower interest, etc. § 1567. Sale, where a power interest exists in the entire property. § 1568. Effect of a sale free from dower. § 1569. Gross sum in lieu of dower, etc. § 1570. Ascertainment of value of inchoate dower interest, etc. § 1571. Release of dower. § 1583. Investment for tenant for life, etc. § 1617. In an action for dower, plaintiff may consent to receive a gross sum in lieu thereof. 41-i Courts of Eecoeb. [Rule 70 § 1618. Leave to defendant to pay a gross sum in lieu of dower. § 1619. Interlocutory judgment for sale — ascertainment of dower. § 1620. Consent to take a lot in lieu of dower. NORTHAMPTON TABLES.] (See copy of Northampton tables, poat, page 463.) In action to recover damages for death.] In an action to recover dam- ages occasioned by the death of plaintiff's intestate, the Northampton tables are properly received in evidence to show the probable duration of the life of the deceased. (Sauter v. N. Y. C. R. R. Co., 6 Hun, 447 [1876]; Schell a. Plumb, 55 N. Y. 592 [1874]; S. C, 16 Abb. [N. S.] 19 [Gen. T. 1873].) Use of Northampton tables to estimate the value of a husband's life.] The Northampton tables may be used by the jury in estimating the probable duration, of the life of a husband whose wife has sued under the Civil Damage Act to recover damages because of his d'eath, resulting from his intoxication. (Davis V. Standish, 26 Hun, 608 [1882].) CARLISLE TABLE OF MORTALITY.] (See copy of Carlisle Table of Mortality, post, page 465.) CONTINGENT DOWER RIGHT — Rule for computation of.] The proper rule for computing the present value of the wife's contingent right of dower during the life of her husband, is to ascertain the present value of an annuity for her life equal to the interest in the third of the proceeds of the estate to which her contingent right of dower attaches, and then to deduct from the present value of the annuity for her life, the value of a similar annuity de- pending upon the joint lives of herself and her husband, and the difference between those two sums will be the present value of her contingent right of dower. (Jackson v. Edwards, 7 Paige, 386-408 [1839].) Gross sum in lieu of a life estate — discretionary with the court.] Except in the case of dower which is provided for by the Code of Civil Pro- cedure, subdivision 3, section 2793, whether the widow shall have a gross sum in lieu of a life estate rests in the discretion of the court. The General Rules of Practice simply provide for the manner of estimating the gross sum when it is allowed. (Matter of Zahrt, 94 N. Y. 605 [1884].) Gross sum not awarded for an inchoate right of dower.] A woman having an inchoate right of dower in surplus moneys arising on a sale in fore- closure is not entitled to a gross sum in lieu of such right. (Citizens' Sav- ings Bank v. Mooney, 26 Misc. Rep. 67 [1899].) When moneys representing an inchoate right of dower will not be paid to the husband.] The sole persons interested in a surplus arising on a mort- gage foreclosure sale being the owner of the equity of redemption and his wife, who had an inchoate right of dower in the mortgaged premises, two-thirds of the money were paid to the husband, and the remaining one-third was de- posited in court to secure the inchoate dower interest of the wife, who had obtained a judgment of separation from her husband, and was dependent upon alimony awarded her thereby. Kule 71] Geneeal, Rules of Practice. 415 Held, that, under the circumstances, the court should not direct the pay- ment of the money, so deposited, to the husband, upon the execution of a bond with two sureties, conditioned upon the payment to the wife, in case she sur- vived the husband, oi the income of the money during her life. Bemhle, that in a proper case the court, in its discretion, might make such an order. (Emigrant Industrial Savings Bank v. Regan, 41 App. I>iv. 523 [1899].) RULE 71. Fees on Executing a Commission of Lunacy — Committee May Pay Cobts, When — Special Order of the Court — When Necessary. On the execution of a commission of lunacy, etc., the commis- sioners, for every day they are necessarily employed in hearing the testimony and taking the inquisition, shall be entitled to an allowance to be fixed by the court, not exceeding ten dollars for each day to each of such commissioners. Where the costs and expenses exceed $250, besides witness' fees and allowances to commissioners, the committee shall not be at liberty to pay the same out of the estate in his hands, without a special order of the court upon notice to all parties wio have appeared in such proceedings, directing such payment. Rule 85 of 1858, amended. Rule 86 of 1871. Rule 86 of 1874. Rule 77 of 1877, amended. Rule 72 of 1880. Rule 72 of 1884. Rule 72 of 1888. Rule 71 of 1896. CODE OF CIVIL PEOCEDURE. § 340. The County Courts have jurisdiction of proceedings for the ap- pointment of a committee. § 2320. Concurrent jurisdiction of courts as to ctommittee of lunatic, etc. § 2321. Duty of court having jurisdiction. § 2322. Committee onay be appointed. § 2323. Application for committee — by whom made. § 2323a. Application where incompetent is confined in State institiitions — contents of petition — proceedings thereon. § 2323b. Costs- and disbursements thereon. § 2324. Duty of certain officers to apply. § 2325. Contents, etc., of petition — proceedings on presentation thereof. § 2326. When foreign committee may be appointed. § 2327. Order for commission or for trial by jury in court. § 2328. Contents of commission. § 2329. Commissioners to be sworn — vacancies, how filled. I 2330. Jury to be procured — proceedings thereupon. 416 CouETs OF Recoed. [Rule 71 § 2331. Proceedings upon the hearing. § 2332. Return of inquisition and commission. § 2333. Expenses of commission. § 2334. Proceedings upon trial by jury in court. § 2335. Subject of inquiry in cases of lunacy. § 2336. Proceedings upon verdict or return of commission. § 2336a. Limitations of sections 2325-2336. § 2337. Security to be given by committee. § 2338. Compensation of committee. § 2339. Committee under control of court — limitation of powers of. § 2340. Committee of property may maintain action, etc. §§ 2341-2342. II., to file inventory and account. § 2343. Property — when to be restored. § 2344. 76., disposition in case of death. COSTS — Authority of committee to pay.] The committee are authorized to pay the cos'ts of the attorney who conducted the proceedings upon the in- quisition to an amount not exceeding $50. (Matter of Clapp, 20 How. Prac. 385 IGen. T. 1861].) Discretionary — will not be allowed unless proceedings are taken for the benefit of lunatic] In proceedings to have a person declared a lunatic, or to traverse or supersede the commission, the cost rests in the sound discretion of the court, and will not be granted unless the proceedings are instituted for the benefit of the lunatic, and are instituted and prosecuted fairly and in good faith. (In tlie Matter of Beckwitb, 3 Hud, 443 [1875].) In certain cases the costs will be allowed against the attorney instituting the proceedings. (Id.) When the cost of the proceedings qarniot bci charged against a petitioner pro- ceeding in good faith. (Matter of McAdams, 1ft Hun, 292 [1879]. See, how- ever. Code of Civil Procedure, § 2336. See, also, Carter v. Beckwith, 128 N. Y. 312.) Costs where the lunatic dies before the confirmation of the inquisition.] Where a person examined under a commission- de lunatico inquirendo dies after the jury has foimd him to be insane, but before the finding has been confirmed by the court or any committee appointed, the costs of the commission are pay- able out of the estate. (Matter of Lofthouse, 3 App. Div. 139 [1896].) Duty of committee to see that the issues raised by an alleged lunatic are properly tried.] Where the lunatic is allowed to traverse the inquisition, it is the duty of the committee to oppose the traverse and see that the issues are properly tried, and when on sueh traverse the alleged lunatic is found not to be of unsound mind, the committee is entitled to the legal expenses incurred, in the proceedings on the inquisition, and in opposing the traverse of it, in- cluding the bills of the attorneys of the committee, and a reasonable counsel fee upon the trial of the traverse, and all disbursements, and to be paid out of the funds of the estate in their hands. (Matter of Clapp, 20 How. Prac. 385 [Gen. T. 1861].) E,ule 72] Geneeal Rules of Practice. 417 RULE 72. Reference on Default in an Action to Obtain a Divorce or Separation — Who May be Referee — Proof of Service of Summons and Complaint — Notice of Appearance, etc., Not Sufficient — Complaint for Divorce, Averments in — Plaintiff to be examined on Oath — Failure of Defendant to Answer. When an action is brought to obtain a divorce or separation, or to declare a marriage contract void, the court shall in no case order the reference to a referee nominated by either party nor to a referee agreed upon by the parties, nor without proof by affidavit conformable to the rules relating to the manner and proof of the service of the summons and complaint. Notice of appearance and retainer shall not be sufficient to excuse such proof. When the action is for a divorce on the grounds of adultery, imless it be averred in the complaint that the adultery charged was committed without the consent, connivance, privity or pro- curement of the plaintiff; that five years have not elapsed since the discovery of the fact that such adultery had been committed, and that the plaintiff has not voluntarily cohabited with the de- fendant since such discovery ; and, also, where, at the time of the offense charged, the defendant was living in adulterous intercourse with the person with whom the offense is alleged to have been committed; that five years have not elapsed since the commence- ment of such adulterous intercourse was discovered by the plain- tiff, and the complaint containing such averments be verified by the oath of the plaintiff in the manner prescribed by the Code, judgment shall not be rendered for the relief demanded until the plaintiff's affidavit be procured stating the above facts. In an action for a divorce or for the annulment of a marriage, where the defendant fails to answer, no reference shall be granted to take proof of the facts stated in the complaint, but before a judgment shall be granted the proof of such facts must be made to the court in open court and a copy of the evidence taken before the court shall be written out and filed with the judgment-roll. The court may, however, in case the evidence is such that the pub- lic interest require that the examination of the witnesses should not be public, exclude all persons from the courtroom except the parties to the action and their counsel and the witnesses, and shall order such evidence, when filed with the clerk, sealed up and ex- 27 418 Courts op Reooed. [Rule 72 hibited only to the parties to the action or some one specially in- terested upon order of the court. Rule 86 of 1858. Rule 87 of 1871, amended. Rule 87 of 1874, amended. Rule 78 of 1877. ,Rule 73 of 1880. Rule 73 of 1884. Rule 73, of 1888, lamended. Rule 72 of 1896. CODE OF CIVIL PROCEDURE. § 438, subd. 4. Service of summons may be without the State or by publi- cation in actions for divorce, etc. §' 83il. Husband and wife not competent to testify against each other in an action or special proceeding founded upon an allegation of adultery,, except to prove the marriage or disprove the allegation of adultery. § 1012. Reference not m^ade, of course, by consent of parties in an action for divorce, etc. — court must designate a referee. § 1024. In actions for divorce, etc., a referee may be appointed to whom all the parties object. § 1229. In an action for divorce, etc., judgment can be rendered only by the court. §' 1742. Action by woman married under sixteen to annul a marriage. § 1743. In what other cases a marriage may be annulled. § 1744. Action when a party was under the age of consent. §' 1745. Id., when a former husband or wife was living. § 1746. Id., when a party was an idiot. § 1747. Id., when a party was a lunatic. § 1748. Action by next friend of idiot or lunatic. § 1749. Issue of marriage annulled for idiocy or lunacy — entitled to suc- ceed, etc. § 1750. Action on the ground of force, fraud, etc. § 1751. Custody, maintenance, etc., of issue of such a marriage. § 1752. Action on the ground of physical incapacity. § 1753. Certain proceedings regulated in action to annul a marriage. § 17'54. Judgment annulling marriage; how far conclusive. § 1755. How next friend of infant, lunatic, etc., allowed to sue, etc. § 1756. In what cases actions for divorce can be maintained. § 1757. Answer — mode of trial — judgment by default — right of the co- respondent to appear. § 1758. Divorce, when denied, although adultery be proved. § 1759. Regulations when the action is brought by the wife. § 1760. Id., when the action is brought by the husband. § 1761. Marriage — after divorce for adultery. § 1762. For what causes an action for separation may be brought. § 1763. In what cases it may be mantained. I 1764. What the complaint roust state. S 1765. Answer in action for, may set up plaintiff's misconduct. Eule 72] General Eules of Pkactice, 419 §' 1766. Support, etc., of wife and children, where the action ia brought by the wife. § 1767. When judgment of separation may be revoked. § 1768. Married woman plaintiff, is deemed resident, when. § 1769. Alimony pendente lite in action for divorce or separation — costs — execution. § 1770. What is deemed a counterclaim in. § 1771. Court to give direction as to custody, etc., of children and support of plaintiff where the action is brought by the wife. § 1772. Security for support, etc., of wife and children. § 1773. Support, etc. — provisions for — when enforced by punishment for contempt. § 1774. Regulations respecting judgment by default in action for. DEFAULT — This rule applies only to cases of default.] In an action by a wife for divorce on the ground of adultery, where the case is litigated, it is not incumbent upon the plaintiff to make affirmative proof of the allegations inserted in her complaint in compliance with the rules of the Supreme Court (Rule 73), i. e., that the adultery charged was "without the consent, privity or procurement of the plaintiff," and that the latter has not voluntarily co- habitated with defendant since discovery of the fact; these are matters of affirmative defense. It is only to provide for a case of defendant suffering a default that these possible defenses are required to be negatived by plaintiff by verified complaint or affidavit. (McCarthy v. McCarthy, 143 N. Y. 235 [1894]; Lowenthal v. Lowenthal, 157 id. 236 [1898].) The rule applies only where the defendant makes default, and has no application to contested actions. No rule can enlarge or abridge the rights conferred by the Code itself. (Ackerman v. Ackerman, 123 App. Div. 750; Freeman V. Freeman, 126 id. 601.) — — What need not be proven on default.] If the verified complaint in an action for an absolute divorce avers the facts enumerated in Rule 72, i. e., that the adultery was committed without the consent, oonmivance, privity or pro- curement of the plaintiff; 'that five years have not elapsed since he discovered it or the adulterous intercourse ; and that he had not since voluntarily co- habited with the defendant, the plaintiff need not and should not, on default, show these facts. If they are not averred in the complaint, then they should be shown by an affidavit. (Evans v. Evans, 27 Misc. Rep. 10 [Kings Sp. T. 1899].) This rule applies only to cases of default, and the things stated in it are not a part of the plaintiff's case, but are matters of defense which the plaintiff is permitted to aver in the complaint, in anticipation of a default. (Evans v. Evans, 27 Misc. Rep. 10 [Kings Sp. T. 1899].) JURISDICTION — Dependent on the statute.] The former Court of Chan- cery in this State had no jurisdiction to grant divorces independent of the statute on that subject. (Grain v. Cavana, 62 Barb. 109 [Gen. T. 1862].) The power of the courts to declare a marriage void is derived exclu- sively from the statutes. (Peugnet v. Phelps, 48 Barb. 566 [Sp. T. 1867].) "^r^O CoTjETs OF Eecoed. [Eule 72 The courts in this State have no common-law jurisdiction over the sub- ject of divorce; their authority is confined altogether to the exercise of such express and incidental powers as are conferred by statute. (Erkenbrach v. Erkenbrach, 96 N". Y. 450 [1884]; Walker v. Walker, 155 id. 77 [1898].) After the dissolution of a marriage no action for divorce will lie.] iA. judgment dissolving the marriage was recovered by a wife against her hus- band. Held, .that it disabled the husband from further prosecuting an action brought by himself against her. (Jones v. Jones, 3S Hun, 414 [1885].) What facts sufficient to show residence in this State.] Where the plaintiff was an opera singer and since her marriage had resided most of the time in New York city, had bank accounts there, and when filling engage- ments abroad gave New York city as her address, held sufiicient to entitle plaintiff to sue in New York State. (Doeme v. Doeme, 96 App. Div. 284.) JOINDER — Actions for divorce and for separation cannot be joined.] A cause of a<;tion for an absolute divorce cannot be united with one for separa- tion, and in such case the failure of the plaintiff to separately state her cause of action does not deprive the defendant of his right to demur to the com- plaint. (Zorn v. Zorn, 38 Hun, 67 [1885] ; Bucholz v. Bucholz, 1 How. Prac. [N. S.] 40 [N. Y. Sup. Ct. Sp. T. 1884].) CONTRACTS — Agreement by a husband to support his wife living apart.] Agreement by a husband to support a wife living apart from him — not void as against public policy — when it is mutual the husband cannot revoke it without the consent of the wife. (Mann v. Hulbcrt, 38 Hun, 27 [1895].) Agreement by a wife to share her alimony with her attorney, is void.] An agreement by a wife to compensate an attorney for conducting an action to be instituted by her against her husband for a separation, by giving him cer- tain percentages of such sums as should be awarded her for alimony, is void as against public policy. (Van Vleck v. Van Vleck, 21 App. Div. 272 [1897].) Agreement to live apart as a consideration for a note.] A note given by a husband to his wife for money loaned is void when part of the considera- tion is an agreement to live apart. (Friedman v. Bierman, 43 Hun, 387 [1887].) Agreement to renew marital relations — effect of its breach.] Where an agreement has been entered into between a husband and wife to discontinue an action for divorce and resume marital relations, the husband has a right, on the breach of the agreement by his wife, to recover property transferred to her in consideration of such agreement. (Bolen v. Bolen, 44 Hun, 362 [1887].) The husband is liable for legal services rendered the wife in an action brought by the wife for a separation.] An attorney may maintain an action against a husband to recover the value of legal services rendered by the at- torney in the institution and prosecution of an action against the husband by the wife for a separation, upon the ground of cruel and inhuman treatment. In such an action the plaintiff must show affirmatively that the suit was for the protection and support of the wife, and that the conduct of the hus- band was such as t(5 render its institution and prosecution reasonable and proper. Quwre, whether the same rule exists in the case of an action for divorce. iv. 586 [1898].) Relative rights of a prior mortgagee and a receiver appointed without notice for a junior mortgagee.] The right of a prior mortgagee to the rents under an .assignment thereof from the mortgagor is superior to that of a junior mortgagee under an order appointing a receiver in an action to fore- close the junior mortgage, made without notice to th.; prior mortgagee. (Harris v. Taylor, 35 App. Div. 462 [1898].) Receiver in supplementary proceedings — appointed only on notice.] A receiver cannot be appointed in proceedings supplementary to execution with- out notice to the judgment debtor. (Vandeburgh v. Gaylord, 7 Wkly. Dili. 136 [Sp. T. 1878]; Ashley v. Turner, 22 Hun, 226 [1880]; Morgan v. Van Kohnstamme, 11 N. Y. Wkly. Dig. 181 [1880].) The title to a judgment debtor's real estate vests by operation of Jaw in a receiver appointed in supplementary proceedings.] The title to real estate owned by a judgment debtor of whose property a receiver has been ap- pointed in supplementary proceedings, vests in the receiver hj operation of law upon the filing of the order appointing the receiver or a certified copy thereof in the proper county clerk's ofiice; no conveyance is necessary to transfer the title to the receiver, nor has the court any power to compel the judgment debtor to execute such a conveyance. (Moyer v. Moyer, 7 App. Div. 523 1896].) A receiver in supplementary proceedings should not determine adverse claims.] A receiver in supplementary proceedings who, without asking for the advice and direction of the court, assumes to decide the rights of adverse claimants, does so at his peril. (Matter of Hone, 153 N. Y. 522 [1897].) In supplementary proceedings — both debtor and creditor are repre- sented by.] A receiver appointed in supplementary proceedings represents not only the debtor, but the creditor at whose instance he was appointed. (■Cummings v. Eg«rton, 9 Bosw. 684 [Sp. T. 1863].) Receiver in supplementary proceedings takes title only to real estate in this State.] Receiver in supplementary proceedings. The title to only 440 CotTBTs OF Eecoed. [Eule 77 such real estate of the debtor as lies within the State is vested in him. (Smith V. Tozer, 42 Hun, 22 [1886].) The receiver's title is superior to that of a bona fide assignee, after the filing of the order.] The title of a receiver appointed in supplementary proceedings to claims upon which the debtor has brought suit is superior to that of a bona fide assignee of such claims under an assignment made subse- quent to the filing of the order appointing the receiver. (Fitzpatrick v. Moses, 34 App. Div. 24 [1898].) When not appointed.] A receiver will not be appointed in supple- mentary proceedings where the only property discovered on the examination is some contingent fees in cases untried or not determined. (Gibney v. Reilly, 26 Misc. Eep. 275 [1899].) The order, made without notice, cannot be questioned collaterally.] While a judgment-debtor is entitled to notice of application for a receiver in third party proceedings, the order of appointment cannot be questioned col- laterally because of failure to give such notice. (Gompreoht v. Scott, 27 Misc. Eep. 192 [1899].) Notice to the attorney of record of the debtor, insufiScient.] Service of notice of application for the appointment of a receiver upon the attorneys of record of the debtor in the action in which the judgment was obtained is not equivalent to service on the debtor personally, and is insufB.cient. (Catholic University of America v. Conrad, 27 Misc. Rep. 326 [1899].) Where the order appointing a receiver in supplementary proceedings is to be filed.] Where the order appointing a receiver in supplementary proceedings must be filed. (Fredericks v. Niver, 28 Hun, 417 [1882].) Receiver's title is a qualified one.] The receiver's title is a qualified one, in the na.ture of a security for the plaintiff in the judgment. Subject to the right of the receiver to resort to the land to pay the judgment, the title remains in the judgment-debtor, and a conveyance of such real estate by him transfers the title thereto, subject to the claim of the receiver. Such re- ceiver is a necessary party to any action brought to apply the land to the payment of the judgment. (Moore v. Duffy, 74 Hun, 78 [1893].) Of rents and profits, no power to pay for repairs.] A receiver of rents and profits appointed in a foreclosure suit has no power, without the order of the court, to lessen the funds in his hands by expenditures for repairs. (Wyckoff V. Scofield, 103 N. Y. 630 [1886].) ^A receiver held liable for rent, when.] In an action brought against a receiver of the " freehold and leasehold " and of the personal property of a testator, to whom the tenants were directed to attorn, to recover rent accruing under a lease, the defendant admitted that he paid the amount of the rent to September 1, 1878, and in May, 1879, sublet the premises. Held, that from the admission's in the answer it was to be inferred that de- fendant went into possession at the time he qualified as receiver, and that he paid rent from that time up to the date specified. (Wells v. Higgins, 132 N. Y. 459 [1892].) That it was immaterial as to whether defendant Avas appointed receiver of the real estate or simply of the rents and profits, as he was appointed re- Eule TT] General Rules of Peactice. 441 ceiver of the personalty and the lease went to him as such ( 1 R. S. 722, § 5 ; 2 id. 82, § 6), and, therefore, that he was liable for the rent accruing up to September 1, 1879. (lb.) Where in an action to set aside a conveyance in fraud of creditors, the receiver cannot recover rents and profits.] In an action brought by a receiver appointed in supplementary 'proceedings to set asidie as fraudulent a convey- ance of real estate executed by the judgment-debtor, so as to subject the prop- erty to levy and sale on execution, where the receiver simply proves his ap- podntment without showing the proceedings necessary to vest in him title to the real estate, he is not entitled to recover the rents and profits. (Wright v. Nostrand, 98 N. Y; 639 [1886].) Equitable interests pass to a receiver.] The equitable interest of the next of kin in the estate of an intestate is property which passes by operation of law to a receiver duly appointed. (Matter of Estate of Eainey, 5 Misc. Rep. 367 [Orange Co. Surrogate's Ct. 1893].) The court may forbid interference with the property in the receiver's hands.] A court having power to appoint a receiver of the assets of an insolvent corporation may, in aid of that appointment, forbid any after inter- ference by way of levy and seizure by attachment or execution with the prop- erty in his possession. (Woerishoffer v. N. R. Con. Co., 99 N. Y. 398 [1885].) Motion to determine right to funds — in what district to be made.] Where a receiver has been appointed in proceedings had for the compulsory dissolution of a corporation under 2 R. S. 462,* an application to determine the right of a person to share in the assets, must be made in the district in which the receiver was appointed. (Rinn v. Astor Fire Ins. Co., 59 N. Y. 145 [1874].) -^ Right of temporary receiver of partnership.] A temporary receiver appointed in an action for dissolution and settlement of a partnership, is a mere common-law receiver with no title to the partnership property, and has no authority to maintain an action to recover partnership assets paid out by one partner on account of his individual indebtedness. (Felter v. Haddock, 11 Misc. Rep. 297 [N. Y. Com. PI. Gen. T. 1896].) A temporary receiver — powers of.] MTiere a temporary receiver, ap- pointed in an action to sequestrate the property of a corporation, has duly executed and filed the requisite bond, land thereafter, under the judgment in the action, is continued a permanent receiver, while a further bond may be exacted in the ddsoretion of the court, he is under no obligation to furnish it until required to do so, and his failure to do so does not affect his power to act as permanent receiver. (Jones v. Blun, 145 N. Y. 333 [1895].) What must be proved before appointment.] As to what must be proved before court will be justified in appointing receiver, see People v. Oriental Bank, 124 App. Div. 741. Not for the purpose of ousting a partner from management.] Receiver should not be appointed in action brought by a partner simply for the purpose of ousting another partner from the management. (Shubert v. Laughlin, 122 * Repealed. 442 CouETs OF Recoed. [Rule 77 App. Div. 701. See, also, Greenwald v. Gotham-Attucks Music Co., 118 App. Div. 29.) In foreclosure proceedings.] When court will regard appointment of receiver in foreclosure proceedings as improper. (Jarmulowsky v. Eosen- ibloom, 125 App. Div. 542. See, also, Pizer v. Herzig, 121 App. Div. 609; Woerishoffer v'. People, 120 id. 319; Baier v. Kelley, 55 Misc. Eep. 368.) As (to bond of receiver, see Coe v. Patterson, 122 App. Div. 76. Will not be appointed in foreclosure unless it is shown property is inadequate security. (Eabinowitz v. Power, 115 N. Y. Supp. 266.) Ancillary receiver.] ^Tien motion for ancillary receiver is properly denied. (Chicago Title & Trust Co. v. German Ins. Co., 119 App. Div. 347.) Receiver's title to property.] As to title to and possession of property by receiver, see Michel v. Betz, 108 App. Div. 241; Stearns v. Early, 49 Misc. Eep. 615; St. Paul Hotel Co. v. Seagrave, 48 id. 657.) Failure to file bond.] Order may be made nunc pro time and his failure to file a bond cannot be attacked collaterally. {Boynton v. Sprague, 100 App. Div. 443.) —^Commissions of.] (See Adams v. Elwood, 104 App. Div. 138.) How far the title to corporate property vests in him. See Coepoea- TIONS, post. INSTRUCTIONS — A receiver is entitled to.] A receiver is entitled to receive instructions from the court as to his duty. (Smith v. N. Y. Consoli- dated Stage Co., 18 Abb. 419 [N. Y. Ck>m. PI. 1864; Curtiss v. Levit,, 1 id. 274 [Gen. T. 1855] ; In the Matter of Van Allen, 37 Barb. 225 [Sp. T. 1861] ; People ex rel. Atty.-Gen, v. Security Life Ins., etc., Co., 79 N. Y. 267 [1879].) Application by a party not interested — disregarded.] A receiver will not be instructed by the court on the application of a 'party who is not in- terested in the suit. {Vincent v. Parker, 7 Paige, 65 [1838]. See, however, Howell V. Ripley, 10 id. 43 [1843].) CONTEMPT — To sue a receiver without leave.] Suing a receiver without permission of the court, is a contempt. (Taylor v. Baldwin, 14 Abb. 166 [Chamb. 1862]; Rich v. Doutrell, 9 id. 356 [Sp. T. 1859].) Action against a receiver — good until the court interferes.] If a receiver, when sued, fails to apply to the court for pTOtection, the action may be continued as though permission to bring the same had been obtained from tlie court. (Camp v. Barney, 4 Hun, 373 [1875].) The court has jurisdiction although the suit is without leave.] The commencement of an action against a receiver without leave does not affect the jurisdiction of the court. When an action has been so commenced the court acquires jurisdiction of the receiver by the service of the summons upon him, and the remedy of the receiver is either to apply for a stay of proceedings upon the part of the plaintiff or his punishment for contempt of court, or both, and upon an application therefor, if the court believes that the case is a proper one for granting leave, permission to make tlie receiver a party de- fendant will be granted nunc pro tunc. (Hirshfeld v. Kalischer, 81 Hun, 606 [1894].) Eule 77] Geneeal Rules oe Peactice. 443 Inteifeience with a receiver in collecting rents is a contempt.] In supplementary proceedings, where a debtor interferes with a receiver who has iproperly filed his order of appointment, while collecting rents from the ten- ants occupying his real property, the debtor is guilty of a contempt of court. (Vt. Marble Co. v. Wilkes, 30 N. Y. Supp. 381 [Sup. -Ct. 1894].) Refusal of a judgment-debtor to deliver goods.] Refusal of a judg- ment-debtor to deliver possession of his store and goods to a receiver in sup- plementary proceedings is a contempt of court, which is not excused by a statement that the goods were commingled with goods consigned to him for sale so that it wias impossible to separate them without a day's labor and going over the stock piece by piece. (Matter of Camerick, 34 App. Div. 31 [1898].) Interference with the receiver's possession.] Interference by a judg- ment-debtor with the receiver's possession after he surrendered his property to the latter constitutes a contempt of court. (Sainberg v. Weinberg, 25 Misc. Hep. 327 [1898].) Failure to pay to a receiver as directed, money deposited in the name of the debtor's wife.] A judgment-debtor is not excused from complying with an order directing him to pay to the receiver moneys deposited in bank in the name of his wife, from whom he has a power of attorney to use the fund as his own, by proof that he was an insurance broker and was accustomed ito deposit in such account checks received for premiums and pay the com- panies with his own checks, in the absence of evidence identifying the money in bank as that of the insurance companies. (Matter of Weld, 34 App. Div. 471 [1898].) When a failure to appear on an adjourned day is not a contempt.] Where a judgment-debtor who, after a partial examination and a payment made on account failed to appear on the third adjourned day, appears on the return of an order to show cause, makes oral excuse and submits to further examination, a refusal to punish for the contempt is not an abuse of dis- cretion. (Lassere v. Stein, 25 Misc. Rep. 423 [1898].) A receiver's right of action — dependent on the filing of his bond.] An action cannot be maintained by a receiver unless proof is given of the filing of his bond, when, by the order appointing him receiver, his power to take the property is dependent upon such bond. (Hegewiseh v. Silver, 50 St. Eep. 448 [Sup. Ct. 1892].) CORPORATIONS — In the case of corporations.] A receiver of a corpo- ration represents both it and its creditors and stockholders. (Atty.-6en. v. ■Guardian Mut. iLife Ins. Co., 77 N. Y. 272 [1879] ; Mason v. Henry, 152 id. 629 [1897].) A receiver not appointed unless a clear necessity be shown.] A re- ceiver of a corporation will not be appointed unless the persons who invoke such action clearly establish that the remedy is necessary to protect their in- terests from imminent and serious injury. (Thalmann v. Hoffman House, 27 Msc. Rep. 140 [1899].) — Limitation on the power to appoint a receiver of a corporation.] The power of the Supieme Court to appoint a receiver of a corporation is limited 444 CouETS OF Recoed. [Rule 7T to the cases prescribed by statute. (Lehigh Coal Co. v. Central R. R. of New Jersey, 43 Hun, 546 [1887].) Default in interest justifies a receivership.] Where a railroad company has failed to pay interest the bondholders are entitled to a receiver, even if the affairs of the company are shown to be properly managed. (Van Benthuysen v. Central New England & Western R. R. Co., 45 St. Rep. 16 [Sup. Ct. 1892].) The title to corporate property does not vest in a temporary receiver.} A temporary receiver appointed prior to the Code of Civil Procedure was not vested with the title to the property of the corporation. (Herring v. N. Y., L. E. & W. R. R. Co., 105 N. Y. 340 [1887]. See Decker v. Gardner, 124 id. 334.) How far the title to corporate property vests in a temporary receiver.] It seems, that a temporary receiver is vested with the title to the corporate property so far as the purposes of his trust require. (Matter of Smith Com- pany, 31 App. Div. 39 [1898].) To what property the receiver takes title.] A receiver of an insolvent national bank acquires no right to property in the custody of the bank which it does not own as against the owner. (Corn Ex. Bank v. Blye, 101 N. Y. 303 [1886].) How far the receiver's appointment dates back.] The appointment of a receiver of a corporation made in proceedings for its voluntary dissolution relates back to the date when his appointment was made and not to the filing of the petition in the dissolution proceedings. (Matter of Muehlfeld & Haynes Piano Co., 12 App. Div. 492 [1896].) Property transferred to a receiver.] All the corporate property and all the title to property of a corporation is transferred to the receiver of suoh corporation upon his appointment, even though a trust has been created con- cerning such property. (Matter of Home Providence Safety Fund Assn., 39 St. Rep. 437 [Sup. Ct. 1891].) Relative rights of a sequestration and mortgage foreclosure receiver in future earnings.] Where a corporate mortgage purports to include future earnings and products, but also provides that until default the mortgagor shall have the use of the earnings in the conduct of its business, and that on default the trustee may enter into possession, exercise the corporate functions and appropriate the earnings, the mortgagor does not, as against general creditors, operate as a lien on the earnings until actual entry and possession under it, and as between a receiver in sequestration proceedings and a receiver on foreclosure the former is entitled to debts and accounts due the company for sales of its products. (New York Security & Trust Co. v. Saratoga Gas & Electric Light Co., 159 N. Y. 137, revg. 30 App. Div. 98 [1899].) But what act a receiver does not make himself a party to an action against the corporation.] How far a receiver of an insolvent corporation who conducts an appeal taken by the company from a judgment recovered against it before its dissolution, is bound by a judgment recovered against the company upon a new trial ordered by the appellate court. (People v. Knickerbocker Life Ins. Co., 106 N. Y. 621.) Eule 77] Gewebal Eules of Peactice. 445 Not made a party after his final discharge.] , A receiver of a bank who has been finally discharged cannot be allowed to intervene in proceedings to reach newly-discovered assets. (Matter of Grand Central Bank, 27 Misc. Eep. 116 [1899].) Not a necessary party to a foreclosure.] He is not a necessary party to a mortgage foreclosure suit against the corporation. (People v. Knicker- bocker Life Ins. Co., 43 Hun, 574 [1887].) Receiver's certificates, issuing of.] Power of the court in an action to foreclose a mortgage on the property of a railroad corporation to authorize a receiver to issue certificates of indebtedness for work and labor. (M. T. Co. V. T. V. & C. E. E. Co., 103 N. y. 245 [1886].) Enforcible only in the court directing their issue.] Receiver's certifi- cates must be enforced in the court directing their issue. ( Passage v. Danville . 33 68 34 69 Number of Age. years' pur- chase the annuity is worth. 70 6.336 71. . 6.015 72 6.711 73 5.434 74 5.190 75 4.989 76 4.792 77 4.609 78 4.422 79 4.210 80 4.014 81 3.799 82 3.606 83 3.406 84 3.211 85 3.009 86 2.830 87 2.685 88 2.597 89 2.495 90 2.339 91 2.321 92 2.412 93 2.517 94 .... 2.569 95 2.596 96 2.555 97 . . . ■ . 2,428 98 2.278 99 2.045 100 1.624 101. . . . 1.192 102 0.753 103 0.317 Rules foe Computing the Value of the Life Estate oe Annuity. Calralate the interest at 5 per cent, for one year upon the sum to the income of which the person is entitled. Multiply this 30 466 Annuity Tables. interest by the number of years' purchase set opposite the person's age in the table, and the product is the gross yalue of the life estate of such person in said sum. EXAMPLES. Suppose a widow's age is thirty-seven, and she is entitled to dower in real estate worth $350.Y'5. One-third of this is $116.91f . Interest on $116.91 for one year at 5 per cent, (as fixed by the 70th Rule) is $5.85. The number of years' purchase which an annuity of one dollar is worth at the age of thirty-seven, as ap- pears by the table, is thirteen years and ^VA parts of a year, which multiplied by $5.85, the income for one year, gives $80.98 and a fraction as the gross value of her right of dower. Suppose a man whose age is fifty is tenant by the curtesy in the whole of an estate worth $9,00'0. The annual interest on the sum at 5 per cent, is $450. The number of years' purchase which an annuity of one dollar is worth at the age of fifty, as per table, is 11.660 parts of a year, which, multiplied by $450, the value of one year, gives $5,247 as the gross value of his life estate in the premises, or the proceeds thereof. Note. — The values in this table are calciilated on the supposi- tion that the annuities are payable yearly, first payment due one year hence. These values, with those for joint and survivorship life interest, may be foimd in " Commutation Tables for Joint Annuities and Survivorship Assurances Based on the Carlisle Mortality, by David Chisholm." London, Charles & Edwin Layton, 1858, SUPREME COURT. RULES MADE BY THE APPELLATE DIVISIONS OF THE SEVERAL DEPARTMENTS. Special Rules Regulating Practice in the First Judicial Department. RULES FOR THE HEARING OF APPEALS FROM THE CITY COURT OF THE CITY OF NEW YORK, AND FROM THE MUNICIPAL COURT IN THE BOROUGHS OF MANHATTAN AND THE BRONX. EXILE I. Term. There shall be a term of the Supreme Court for the hearing of appeals from the City Court and the Municipal Court of the City of New York in the boroughs of Manhattan and the Bronx which shall commence on the first Monday of October, ISTovember, December, January, February, March, April, May and June in each year and shall continue from day to day during each of said months until all appeals ready for hearing are heard and dis- posed of. This term of the court shall hold its sessions in the Court House in the county of New York, and shall be held by three justices of the Supreme Court, duly designated to hold said term, and shall be known as the Appellate Term. RULE II. Calendar and filing return. The clerk of such term of the Supreme Court shall make up a calendar of all appeals to be heard each term, and publish the same in the " Law Journal " at least eight days before the com- [467] 468 Appellate Teem — Fiest Depaetment. [Eule 3 mencement of the term. No appeal shall be placed on such cal- endar unless the return from the court below is duly filed with the clerk of such term at least ten days before the commence- ment of the term ; nor, in the case of appeals from the City Court, unless an affidavit is filed with such clerk at least ten days before the commencement of the term, by which it appears that three copies of such return, duly printed as required by the General Rules of Practice, have been served upon the attorney for the respondent. Upon such return being filed as aforesaid, and in the case of appeals from the City Court upon an affidavit as afore- said being also filed, the clerk shall place the appeal upon the calendar in the order in which the return was filed. Upon an appeal from the City Court the judgment or order of the court shall be entered in the office of the Clerk of the Supreme Court; a certified copy of such judgment or order shall be an- nexed to the return from the City Court, which certified copy and return shall be transmitted to the City Court, as required by sec- tion 1345 of the Code of Civil Procedure. Upon an appeal from the Municipal Court the judgment or order of the Appellate Term shall be entered in the office of the Clerk of the Supreme Court, and a certified copy thereof annexed to the return received from the Municipal Court, which return and certified copy of the judgment or order shall be returned to the District of the Munici- pal Court from which the appeal was taken, as provided by section 327 of chapter 580 of the Laws of 190i2, which shall remain on file in the said Municipal Court. RULE in. Failure to file return and motion for dismissal therefor. In appeals from the City Court, in case the appellant does not cause the return to be filed with the clerk of the Appellate Term and print and serve three copies thereof upon the attorney for the respondent, as required by the General Eailes of Practice, within twenty days after the settlement of the case upon appeal, and in case of an appeal from an order of the City Court within fifteen days after service of the notice of appeal upon the at- torney for respondent, the respondent may move, upon five days' notice, on the first day of the term of such court, to dismiss the appeal, and the appeal shall be dismissed unless the time of the Eule 5] Special Eoles of Pkactice. 4G9 appellant to cause such return to be filed and copies thereof to be printed and served be extended by the justices assigned to hear such appeals, or one of them, for good cause shown. In appeals from the Municipal Court of the City of New York, if the appellant does not procure the return to be made to the appellate court within the time prescribed by section 317 of chapter 580 of the Laws of 1902, the respondent may move upon five days' notice, on the first day of the term, to dismiss the appeal, and such appeal shall be dismissed unless the justices assigned to hear such appeals, or one of them, for good cause shown, shall extend the time. RULE IV. Attachment — motion for. If the justice of the Municipal Court whose duty it is to cause a return to be filed with the Appellate Term shall not make such return within the time prescribed by section 317, chapter 580, of the Laws of 1902, either party may move the Appellate Term, upon notice to the attorney for the adverse party and to such justice to compel such return by attachment. RULE V. Briefs — form and filing — submission of appeal — argument. The cases and points and all other papers furnished to the Appellate Term on an appeal from the City Court shall be printed as provided for in Eule 43 of the General Eules of Practice. The points on an appeal from the Municipal Court shall be printed as therein provided or typewritten. In every case on appeal from the City Court or the Municipal Court the appellant must, on or before the Monday preceding the first day of the term at which the appeal is noticed for argument, file with the clerk of the Ap- pellate Term the requisite number of copies of his points to be used upon the hearing, indicating thereon the number of the ap- peal on the calendar published in the " Law Journal," and shall also, on or before the Monday preceding the first day of said term, serve a copy of said points upon the attorney for the respondent. Upon failure so to do the appeal may, when called for argument in its regular order on the calendar, be dismissed or the hearing thereof adjourned to the next term, as the court may determine. Not later than twelve o'clock noon on the Saturday preceding the 470 Appellate Teem — First Depaetment. [Eule 7 first day of the term the respondent must serve a copy of his points upon the attorney for the appellant or iipon the appellant's counsel, and file with the clerk the requisite number of copies thereof to be used upon the argument, said copies also to contain the number of the case upon the calendar as published in the " Law Journal." No further time for filing points will be granted and no other points will be received or considered unless the court shall by its own raotion direct further points to be submitted. Wo appeal will be heard or received on submission unless it has been noticed for argument and proof of service thereof filed with the clerk of the Appellate Term on or before the Monday pre- ceding the first day of the term. All appeals must be heard or submitted when regularly called for argument, unless the court, for cause shown, shall adjourn the hearing until a subsequent term ; and no appeals shall be svibmitted without argument unless the points have been filed and served as hereinbefore provided. In the argument of an appeal from an order or from a judgment of the Municipal Court not more than fifteen minutes shall be occu- pied by counsel on either side ; and in the argument of an appeal from a judgment of the City Court not more than thirty minutes shall be occupied by counsel on either side, except by express per- mission of the court. RULE VI. Default in appearance — result and effect. If the appellant does not appear upon the call of the calendar, the judgment or order appealed from shall be affirmed. If the appellant appears and the respondent fails to appear, the appellant may either argue, or submit his case, but judgment of reversal by default will not be allowed. EULE VII. Application for leave to appeal — reargument — motion for. Motions for reargument and applications for leave to appeal from a determination of the Appellate Term to the Appellate Division under section 1344 of the Code of Civil Procedure must be made upon written notice to the adverse party on the first day of the term next succeeding the term at which the case was decided. Such motions and applications must be based upon an affidavit or Eule 8] Special Eules or Peactice. 471 a statement setting forth concisely the points claimed to have been overlooked or misapprehended by the court, vs^ith proper reference to the authorities relied upon, and the reason why such reargument should be granted or appeal allowed, together with a copy of the opinion, if any. The briefs may be either printed or type- written. All motions and applications must be submitted with- out oral argument. An appeal to the Appellate Division from an order granting a new trial will not be allowed unless the appellant files with his notice of application for leave to appeal a stipulation that if the order appealed from be affirmed, or the appeal therefrom be dis- missed, judgment absolute may be rendered against him. A party desiring an order staying proceedings pending a mo- tion for reargument or an application for leave to appeal must serve the notice provided for in this rule. Upon an affidavit showing the service of such notice, a copy of the moving papers and a statement in such affidavit setting forth the reasons why a stay should be granted, an application for a stay will be enter- tained. Application for such an order must be made to the jus- tices of the Appellate Term who heard the appeal, or one of them, by presenting the same to the clerk of the Appellate Term, by whom it will be brought to the atttention of the court. EULE vni. Motions generally — practice — calendar. Pive days' notice of motion shall be given of all motions made in the Appellate Term, except motions for restitution, under sec- tion 323 of the Municipal Court Act. In all motions noticed for the first day of the term a notice of such motion, whether founded upon an order to show cause or a regular notice of motion, with proof of service thereof, together with a note of issue, must be filed with the clerk of the Appellate Term on the Friday preced- ing the commencement of the term. The motion calendar will be published on the Saturday preceding the commencement of the term, but no motion will be placed thereon except upon compli- ance with this rule. The motion calendar will not be called and no oral argument will be allowed. The briefs of counsel and the answering affidavits, if any, must be filed with the clerk at or before twelve o'clock noon of the first day of the term. 472 Appellate Teem — Fiest Depaetment. [Rule 1 All motions, other than those made under Rules three and seven, whether upon an order to show cause or by regular notice of motion, may he made returnable upon any day of the term. Except when the Appellate Term shall otherwise direct, all decisions, either in cases upon appeal or on motion, will, when announced, be accompanied by an order duly signed. A motion for resettlement of such order must be made upon two days' notice. CALENDAR RULES ADOPTED BY THE APPELLATE TERM. RULE I. The calendar of appeals from orders and judgments of the City Court will be called in the forenoon of the first day of the term at 10 o'clock a. m. The calendar of appeals from orders and judgments of the Municipal Court will be called on the second day of the term at 10' o'clock a. m. RUIE n. In motions for leave to appeal or for reargument an indorse- ment must be made upon the motion papers stating the term of the court at which the case was argued or submitted. If' an appeal upon the calendar is affected by a motion, the motion papers and the note of issue must be indorsed with the calendar number pf such appeal. RUIE in. Briefs of counsel, when reference therein is made to the testi- mony given upon the trial, must give the number of the folio in the printed case if an appeal from the City Court, and the number of the page in the record if an appeal from the IMunicipal Court. If the appellant's brief fails to comply with this rule the appeal may be dismissed. If the respondent's brief is deficient in this respect the appeal may be considered on the appellant's brief alone. RULES FOR THE REGULATION OF THE TRIAL TERMS OF THE SU- PREME COURT IN THE FIRST JUDICIAL DISTRICT AND TO REGU- LATE THE CALENDAR PRACTICE THEREIN. RULE I. The general calendar of issues of fact to be tried by a jury in the County of Xew York shall consist of three separate calendars, known respectively as Calendar No. 1, Calendar Xo. 2 and Cal- Rule 2] Special Eules of Peactioe. 473 endar No. 3, which shall he made up from time to time as ordered by the Appellate Division of the Supreme Court in the First Department, and these calendars shall remain for the successive Trial Terms of the court until new calendars are made up. New causes that have been regularly noticed for trial and a note of issue filed as prescribed by the Code of Civil Procedure shall be put at the foot of the proper calendar. Parties filing a consent may have a cause on either of the calendars reserved generally. A cause which has appealed on the calendar of the Circuit Court, the Superior Court of the city of New York, or the Court of Com- mon Pleas for the city and county of New York, or on a calendar of the Trial Term of the Supreme Court, where the parties shall have omitted to file a note of issue so as to have the same placed on a new calendar, may be placed on the proper calendar at the foot thereof by the justice calling the Friday calendar on applica- tion of either party, on two days' notice to the adverse party. Causes placed on the several calendars hereinbefore provided for shall be classified as follows: Upon Calendar No. 1 there shall be placed actions to recover for personal injuries or for death against railroad companies. Upon Calendar No. 2 there shall be placed actions for libel, slander, false imprisonment, malicious prosecution and all other actions sounding in tort, except actions for personal injuries against railroad companies and actions to recover damages for conversion of personal property. Upon Calendar No. 3 there shall be placed actions for damages for the conversion of personal property, actions on contract and to re- cover damages for a breach of a contract, and all other actions not hereinbefore directed to be placed upon Calendars Nos. 1 and 2. A note of issue must specify the particular nature of the action and the calendar upon which the same shall be placed, as required by section 977 of the Code of Civil Procedure ; and the clerk shall not receive a note of issue unless it complies with this provision. Am'd May 23, 1904. EULE n. Any cause " reserved generally," where the same has been reached in its regular order, or in which a new trial shall have been ordered, may be placed on the calendar for any Friday on filing a consent with the clerk; or either party may apply to the justice calling the Friday calendar upon any Friday upon two 474 Teial Teem — First Depaetment. [Rule 4 days' notice, for an order placing such cause upon the Friday cal- endar to be called for trial. All motions or applications for orders in respect to the calendar, except as provided by Eules 3, 5, 6 and 7 must be made to the justice calling the Friday calendar. UTILE in. A party entitled to have a cause preferred under sections 791 and 793 of the Code of Civil Procedure, may apply upon notice, to the court at Part 2 of the Trial Term to have such preference awarded. If such application for a preference is granted, the court shall direct such cause to be placed upon the appropriate day calendar for a day certain for trial, and called after the causes then upon the said day calendar marked ready. If the party who has moved for such a preference shall not be ready to proceed with the trial when the cause is called for trial, the said cause shall thereupon be stricken from the day calendar, retaining its position on the general calendar which it would have had if no preference had been ordered. Am"d May 23, 1904. RULE IV. There shall be twenty Trial Terms of the Supreme Court, to be known respectively as Trial Term, Part I, Part II, Part III, Part IV, Part V, Part VI, Part VII, Part VIII, Part IX, Part X, Part XI, Part XII, Part XIH, Part XIV, Part XV, Part XVI, Part XVII, Part XVIII, Part XIX and Part XX. Each of said parts shall commence on the first Monday of Janu- ary, February, March, April, May, June, October, ISTovember and December in each year, and shall continue to and until the fourth Friday of the term, and until the end of any trial actually com- menced on or before the fourth Friday of the term, or the final disposition of any application or motion in an action tried at such term, and until the terms shall be adjourned without day by the justice assiged to hold the same. Parts III, VIII and XIV of such Trial Terms shall open at 10:15 and the other parts at 10:30 a. m. on each day dur- ing the term, except Saturdays, Sundays, and legal holidays. Part I of the Trial Term shall be the Criminal Term of the Supreme Court for the trial of indictments, and shall be held in the Criminal Court B'uilding or in the County Court House, in Rule 5] Special Eules of Peactice. 475 the county of New York. Part II of the Trial Term shall be the Trial Term for the disposition of the special calendar. Parts III and IV of the Trial Term shall try and dispose of cases from General Calendar JSTo. 1. Parts V, VI, VII, VIII, IX, X and XI of the Trial Term shall try and dispose of causes from General Calendar No. 2. Parts xil, XIII, XIV, XV, XVI, XVII and XVIII of the Trial Term shall try and dispose of causes from General Calendar No. 3. Parts XIX and XX of the Trial Term shall try and dispose of causes from General Calen- dars Nos. 1, 2 and 3, as shall from time to time be ordered by the Appellate Division, and whenever there shall not be cases on the day calendar of either Nos. 1, 2 or 3 to occupy all the parts desig- nated to try and dispose of causes from such calendar, the part or parts not so occupied shall try and dispose of cases from the other day calendars. RULE V. Subdivision 1. There shall be a special calendar on which shall be placed for trial all questions of fact ordered or directed to be tried by a jury, all issues and questions of fact in special proceedr ings and all issues and questions of fact which have been stated for trial in ptirsuance of section 970 and section 971 of the Code of Civil Procedure. Such calendar shall be called and the causes thereon tried and disposed of at Part II of the Trial Term. Subd. 2. In any action wherein the plaintiff seeks to recover a debt or liquidated demand upon a bond or other obligation for the payment of a specific sum of money; a bond or undertaking on appeal; a negotiable instrument; an account stated; for wages, salary or compensation for services; upon a policy of insurance; for rent or hire of real or personal property ; for mctaey had and received ; for money loaned ; for goods sold and delivered ; on a statute where the sum sought to be recovered is a sum of money other than a penalty; or on a guaranty, the plaintiff may, at the first term at which the cause shall have been placed upon the general calendar, upon five days' notice to the defendant, and upon competent proof by affidavit of the facts upon which the cause of action is based, apply to the justice holding Part II of the Trial Term for an order placing said cause upon the special calendar for trial. Copies of the affidavit and exhibits, if any, upon which the application is based, must be served with the notice of the 476 Tkial Teem — Fiest Depaetment. [Rule 5 application. If, upon the afBdavits so submitted and the affidavit of the opposing party, the court shall be satisfied that there is no substantial defense to the action, or that the answer was not inter- posed in good faith, or was interposed for the purpose of delay, the court may place the cause upon the special calendar for Trial Term, Part II. The court may, in its discretion, deny the appli- cation, with or without costs, or upon terms as to stipulating in relation to the admission of facts not actually controverted, con- senting to the examination before trial of a party or witnesses, or the production of books, papers or documents, or the giving of security to secure the plaintiff in the event of final judgment being in his favor. The papers upon which such application shall be made and the answering affidavits, if any, must be filed with the clerk of Trial Term, Part II, on or before 1'2 o'clock noon of the day for which the application is noticed, and no oral argument will be heard upon such application. . Subd. 3. In an action on contract, express or implied (other than a contract to marry), either party may apply to Part II, Trial Term, on two days' notice to the adverse party, for an order placing the cause upon the special calendar. Upon such applica- tion, if it satisfactorily appears by affidavit and the pleadings that the trial of the action will not occupy more than two hours, and that no good reason exists why the action should not be promptly tried, the justice to whom the application is made may, by order, direct the cause to be placed on the special calendar to be called in Trial Term, Part II, and dispose of the same in its regular order thereon. The papers upon which the application is made and the answering affidavits, if any, must be filed with the clerk of Trial Term, Part II, at or before 12 o'clock noon of the day for which the application is noticed, and no oral argument will be heard upon such application. Subd. 4. All causes and all questions and issues of fact to be placed on the special calendar shall be so placed in the order of filing with the clerk of Part II, Trial Term, of the order directing the cause to be so placed, or of the order or direction for the trial by jury, or of the order stating the issues or questions of fact to be tried by jury, and shall be called and tried in the order in which the same are placed on such special calendar, unless post- poned for good cause shown by affidavit. If the trial of any Eule 6] Special Rules of Peactice. 477 cause is placed upon the special calendar upon the ground that the trial thereof will not occupy more than two hours shall actu- ally occupy more than that time the court may, in its discretion, send the cause to the foot of General Calendar No. 3. If at any time there shall be more causes upon the special calendar than can be promptly tried and disposed of at Trial Term, Part II, the justice holding said part may send said causes, or any of them, to Trial Term, Part XIV, where they shall be placed upon the day calendar and tried and disposed of in like manner as the other causes on said day calendar. RULE VI. The clerk shall make up a separate day calendar for each day of the term of the causes from Calendars jSTos. 1, 2 and 3 set down for trial on such day. The day calendar of causes from General Calendar No. 1 shall be called at Trial Term, Part III, at 10:15 o'clock. The day calendar of causes from General Calendar No. 2 shall be called at Trial Term, Part VIII, at 10:15 o'clock. The day calendar of causes from General Calendar No. 3 shall be called at Trial Term, Part XIV, at 10:15 o'clock. The causes on each of the day calendars shall remain thereon from day to day until they are tried or otherwise disposed of. Causes on the day calendar from Calendar No. 1 shall be sent for trial to Parts III and IV. Causes on the day calendar from Calendar No. 2 shall be sent for trial to Parts V, VI, VII, VIII, IX, X and XI. Causes on the dav calendar from Calendar No. 3 shall be sent for trial to Parts XII, XIII, XIV, XV, XVI, XVII and XVIII. Such causes shall be tried in the parts in which they are called or to which they shall be sent for trial in the order in which they appear on the day calendars. No application to postpone the trial of a cause shall in any case be entertained after such cause has been sent to a part for trial. A cause which has once been sent to a part for trial shall not be again placed on the day calendar, except by order of the justice holding the part from which it was sent, for good cause shown to him by affidavit, but such cause shall remain in the part to which it has been sent for trial until finally disposed of. When the causes upon the day calendar called in either Part III, Part VIII or Part XIV shall have been disposed of, causes upon the day calendar of either of the other parts may be sent to 478 Trial Teem — Fiest Depaetment. [Rule 7 any part not actually engaged in the trial of a cause. When a cause has been tried and the jury has disagreed, or for any reason there has been a mistrial, or a juror has been withdrawn, the cause may be restored to the Friday call calendar or to the day calendar in the part from which it was sent for trial, or may be set down for trial upon another day of the same week at which it was tried by the justice holding the part from which it was sent for trial. In case Part II, Trial Term, shall not have business enough to occupy it during court hours causes from either Parts III, VIII or XIV shall be sent to it for trial. RULE VII. The special deputy clerk assigned to Part 2 of the Trial Term shall have charge of the general and preferred calendars herein provided for. All orders relating to the calendar and all notes of issue of causes to be placed upon the calendars shall be filed with the said clerk of Part 2 of the Trial Term. The clerk shall each week make up three calendars of causes from the general calendars for trial at Trial Term, which calendars shall be pub- lished at least two days before the same are called. These calen- dars shall be called by the justice of the court holding Trial Term, Part 3, as provided in Rule VI, on Friday of each week, at 2 o'clock p. M., unless another day is specially fixed by him, to call such calendars. Causes on such calendars may be set down for trial on any day in the week following. In case it should appear upon the call of either of the calendars on Friday that the number of cases set down for trial on the following week will not be sufiicient to occupy the available time of all the Trial Term? of the court, to ^hich the cases are to be assigned, the justice holding Supreme Court, Trial Term, Part 3, shall order a calen- dar of cases from the proper general calendar, to be made up and called on Wednesday morning at 10 o'clock. Upon the call of such calendar, cases may be set down for any day of the week in which the calendar is so called, or for the succeeding week. When a case has appeared and been called for the second time on either of the call calendars, on the subsequent call it must, when reached, be assigned to the day calendar for trial or go to the foot of the proper general calendar, unless it should be made to appear by affidavit to the satisfaction of the court that the Eule 9] Special Rules of Peagtice. 479 cause should be further adjourned, in which case it shall be ad- journed to such time as the court shall fix, and when the case is again called the same must be assigned to the day calendar for trial, or go to the foot of the general calendar. When a case has been thus set down on a call of either of the calendars on any Friday or Wednesday for trial, and appears upon the day calendar, it must be tried or go to the foot of the general calendar, unless it appears by affidavit to the satisfaction of the justice calling the day calendar that, in consequence of the happening of an event since the cause was set down for trial, the trial cannot, with justice to one of the parties, proceed. The court may then by order set the case down for trial on another day in the same or following week of the term, or place the cause on a Friday call calendar. In a cause upon a day calendar for trial, where it shall appear to the court by affidavit that counsel who is to try the same is to argue a cause upon a day calendar of the Supreme Court of the United States, or upon the day calendar of the Court of Appeals of the State of New York, or upon the day calendar of any Appellate Division of the Supreme Court, or is actually engaged in the trial of a cause in a court of record in the counties of New York or Kings, the cause shall be passed for the day, or until such argument or trial is concluded, unless the trial in which the counsel is engaged, is a protracted one. In no other event shall a cause upon the day calendar be passed for the day. RULE VIII. In no event shall a cause on the day calendar be passed from day to day, on account of the engagement of counsel, for more than three days. Not more than two causes shall be held ready on the day calen- dar for one counsel in addition to the cause in which he is engaged, and in all causes the counsel who is to try the same must be desig- nated, if required by the court, on the call of the day calendar. RULE IX. An order directing a delinquent juror to show cause why the payment of a fine should not be enforced must be granted by, and made returnable before, the justice by whom said fine was imposed. Such order must be made returnable at the Trial Term to which 480 Special Teem — Fiest Depaetment. [Rule 2 said justice is assigned upon such day of tlie term and at such time of the day as the justice shall designate. Such proceedings shall be conducted before, and heard and decided by said justice at said time and place. Where a justice by whom a fine was imposed has ceased to be a member of the court, or has been designated as a member of the Appellate Division, or has been assigned to hold Special Term, or is absent or unable for any reason to hear such proceedings the order directing the delinquent juror to show cause why the pay- ment of the fine should not be enforced must be granted by and made returnable before the justice assigned to hold Trial Term, Part 8, upon such day of the term and at such time of the day as he shall designate. Said proceedings shall be taken before and heard and decided by said justice at said time and place. RULES FOR THE REGULATION OF THE SPECIAL TERMS OF THE SUPREME COURT IN THE FIRST JUDICIAL DISTRICT AND ESTAB- LISHING THE CALENDAR PRACTICE THEREIN. RULE I. There shall be a Special Term of the Supreme Court for the hearing of litigated motions to commence on the first Monday of each month and to continue until the Friday preceding the first Monday of the succeeding month, which term shall be held every day except Saturdays, Sundays and legal holidays. The court shall open at half-past ten in the morning and shall continue until all business before the court has been disposed of. This Special Term shall be known as Special Term, Part 1. EUIE n. Motions may be noticed for any day during the term. The clerk of Special term, Part 1, shall make up a calendar for each day. ISTotes of issue must be filed with the clerk two days before the day on which a motion is noticed to be heard, except where an order to show cause is granted, returnable in less than two days, when the clerk shall place the motion upon the calendar at any time before the day for hearing, upon the exhibition to him of Hule 3] Special Rules of Peactice. 481 -the order to show cause and the filing of a note of issue, or the justice assigned to said part of the court may place the motion on the calendar on the day upon which the order to show cause is returnable. This calendar will be called at the opening of the court and no motion will be heard that is not upon the calendar. On the hearing of a motion upon such calendar, but one counsel on each side will be heard, and not more than fifteen minutes will be allowed to each counsel, unless the court shall otherwise order. Application for final judgment, where an interlocutory judgment has been entered and an account has been taken, or other proceeding had before a referee or for a final judgment in an action for divorce under section 1774 of the Code of Civil Pro- cedure, motions for a new trial on the ground of surprise or newly discovered evidence, motions to confirm a referee's report and for final judgment in any action or proceeding in which an issue of fact has been tried by a jury or by a referee, where application to the court for final judgment or final order is neces- sary, applications for the appointment of commissioners or for a final order or judgment in a proceeding to condemn real estate for public use, may be noticed for, and made at. Part 1 of the 'Special Term, for the hearing of litigated motions, upon any day of the July, August and September terms when Part 3 of the Special Term is not in session. The justice assigned to Part 1 of the Special Term, if he does not deem it important that such application should be heard during the time when Part 3 is not in session, may adjourn the time to the next term of Special Term, Part 3. RULE III. In all actions or proceedings in which the accounts of an assignee for the benefit of creditors or of a receiver appointed in an action or in a proceeding for the dissolution of a corporation are presented for settlement or to be passed upon by the court, a notice or a copy of an advertisement requiring the creditors to present their claims to a referee, must be mailed to each creditor whose name appears on the books of the assignor or corporation, with the postage thereon prepaid at least twenty days before the day specified in such notice or advertisement. Proofs of such mailing shall be required on the application for a final decree passing the accounts of the assignee or receiver unless proof is 31 482 Special Teem — Eiest Department. [Eule S furnished that personal service of such notice or copy of advertise- ment has been made upon the creditor. RULE IV. There shall be a Special Term of the Supreme Court for the transaction of ex parte business, to be held on the first Monday of each month and to continue to and including the Saturday prior to the first Monday of the following month. The court shall open at 10:30 o'clock in the morning, and shall continue in session until 4 o'clock in the afternoon, except Saturdays, upon v?hich day the court may be adjourned at 12 o'clock noon, and shall be open every day in the year, except Sundays and legal holidays. This Special Term shall be known as Special Term, Part 2. The justice assigned to Part 2 shall also attend to the drawing of jurors for the Trial Term of the Supreme Court. RULE V. Application for all court orders, ex parte or by consent, or where notice is not required or has been waived, must be made to Special Term, Part 2. Any ex parte court order granted by any justice of the court other than the one assigned to hold Part 2 of the Special Term, shall not be entered by the clerk. All appli- cations for judgment in actions where the defendant has failed to appear, or has waived notice of motion for judgment or has consented thereto, except in actions for divorce, all proceedings under the Domestic Relations Law for the adoption of children, and all proceedings under the Insanity Law for the commitment of a person alleged to be insane, shall be made to said Special Term, Part 2, and shall not be made to any other court or justice. All orders for the examination of parties or witnesses in supple- mentary proceedings, or to perpetuate testimony, or for the exam- ination of parties before trial, or for the examination of witnesses under letters rogatory, or foreign commissions, or in aid of an attachment, or for any other purpose, or in any proceeding (except an order to show cause or a warrant issued under section 2269 of the Code of Civil Procedure, which must be made returnable before Part 1 of the Special Term), shall be made returnable before the justice assigned to bold said Special Term, Part 2, Rule 5] Special Eules of Peactice. 483 unless made returnable before a referee or commissioner under express statutory authority, and all writs of habeas corpus or other writs that are required by law to be returnable at a Special Term of the 'Supreme Court, or before a justice thereof, must be made returnable at the said Special Term, Part 2, or before the justice assigned to hold the same. Any writ or order before mentioned returnable elsewhere shall, upon its return, be transferred to said Special Term, Part 2, for hearing and decision. If not so trans- ferred, the writ or order shall be disregarded. In actions for absolute divorce or to annul a marriage, where no answer is inter- posed, a reference to take proof will not be granted. In such cases the application for judgment must be made at the Special Term, Part 3, and the case placed upon the preferred calendar as hereinbefore provided. Whenever the justice assigned to either Part 1, Part 2 or Part 3 of the Special Term is disqualified from hearing any application or motion that shall be brought on before him, he may send such application to such other Part of the Special Term as he shall select, to be heard and disposed of. Proceedings under section 511 of the Consolidation Act, and all other proceedings authorized by title 5 of said act, to be had be- fore a justice holding the Chambers of the Court, must be heard in the said Special Term, Part 2. If a jury is demanded, the justice holding such term may con- tinue such proceedings before the justice holding one of the Trial Terms, where a jury shall be forthwith empaneled and the ques- tion determined and the proceeding finally disposed of as required by said act. In case neither of the Trial Terms is in session the justice assigned to the said Special Term, Part 2, may empanel a jury and dispose of the proceeding as required by the said act. In case of an appeal from an order of commitment under section 63 of the Insanity Law, the justice assigned to Part 2 of the Special Term may send the question of the insanity of such alleged lunatic to either part of the Trial Terms for trial before a jury as required by said section. The justice trying such proceeding before a jury shall certify the verdict to the justice assigned to Part 2 of the Special Term, who shall make the order as required by such sec- tion. In an application for a commitment under section 60 of the In- sanity Law (chapter 545 of the Laws of 1896) it must be shown 484 Special Term — First Department. [Kule 6 ty the petition or by an accompanying affidavit whether or not the person alleged to be insane is confined on a criminal charge or on bail pending the determination of a criminal charge, or in official custody for the purpose of ascertaining his condition after a criminal charge has been made against him. If a criminal charge is pending against the person thuS alleged to be insane, two days' notice of the time and place of presenting the application to the Court or a justice thereof must be given to the district attorney. EULE VI. The following regulations will apply to all the insolvent assign- ments for the benefit of creditors and applications to the court thereunder : Subdivision 1. Duties of the Clerk. — The clerk, in addition to the books now kept by him, shall provide a register and docket. In the register shall be entered in full every decree and final order made in the proceedings according to date, and the docket shall contain a brief memorandum of each day's proceedings ac- cording to their respective titles. The register and docket shall be, at all times during court hours, open for public inspection. Subd. 2. Each petition or order or decree filed shall be indorsed with the day and date of such filing, and the papers in each case shall be kept in a file by themselves. Subd. 3. 'No paper shall be permitted to be taken off the files of the court for any purpose, except on an order of the court. Subd. 4. Every paper filed shall have a brief memorandum indorsed on the outside cover, showing the nature thereof. Subd. 5. Copies of any and all papers in these proceedings shall be furnished to any person applying for same upon the pay- ment of the legal fees. Subd. 6. Process. — All process, citations, summons and sub- poenas shall issue out of the court under the seal thereof and be tested by the clerk. Subd. 7. Appearances. — Any party may appear in these pro- ceedings, either in person or by attorney — if by attorney the name of such attorney, with his place of business and residence, shall be indorsed on each and every paper filed by him, and his name shall be entered in the docket. Euie 6] Special Eules of Peactice. 485 Subd. 8. Schedules. — The schedule of liabilities and assets re- quired to be filed by the assignor or assignee shall fully and fairly state the nominal and actual value of the assets, and the cause for the difference, and a separate affidavit will be required vsrhich shall fully explain the cause of such diiierence. If required the affi- davits of disinterested experts as to such value must be furnished. Subd. 9. Signing of. — Where there may be more than one sheet of paper necessary to contain the schedules, each page shall be signed by the person or persons verifying the same. The sheets of paper on v^hich the schedules are written shall be se- curely fastened before the filing thereof, and shall be indorsed with the full name of the assignor and assignee, and when filed by an attorney shall also be indorsed with his name and business address. Subd. 10. Filing by Assignee. — ■ Should the schedules be filed by the assignee there must be a full affidavit made by such assignee and some disinterested expert, showing the nature and value of the property assigned. Subd. 11. Name and Eesidence. — The name, residence, occu- pation and place of business of the assignor, and name and place of residence of the assignee, may be incorporated in the affidavit or annexed to the schedules. 'Subd. 12. Eecapitulation. — There shall be a recapitulation at the end of the schedules as follows: Debts and liabilities amount to $ ; assets nominally worth $ ; assets actually worth $ Subd. 13, Contingent.' — Contingent liabilities shall appear on a separate sheet of paper. Subd. 14. Amendments of.— Application to amend the sched- ules shall be made by verified petition, in which the amendments sought to be made shall appear in full and such amendments shall be verified in the same manner as the original schedules were verified. Subd. 15. Bonds of Assignee. — The bond shall be joint and several in form and must be accompanied by the affidavit pre- scribed by section 812 of the Code of Civil Procedure, and also by the affidavit of each surety, setting forth his business and where it is carried on, the amount of his debts and liabilities, and the description and value of property, real or personal, owned by him. 486 Special Teem — Fiest Department. [Rule 6 so that it may appear that he is worth the amount in which he is required to justify over and above his debts and liabilities. Subd. 16. Justification of Sureties. — The court may in its discretion require any surety to appear and justify. Subd. lY. At least one of such sureties shall be a freeholder. If the penalty of the bond be $20,000 or over, it may be executed by two sureties justifying each in that sum, or by more than two sureties, the amount of whose justification united is double the penalty of the bond. Subd. 18. Provisional. — The affidavit upon which application is made for leave to file a provisional bond, must show fully and fairly the nature and extent of the property assigned, and good and sufficient reasons must be shown why the schedules cannot be filed, and it must appear satisfactorily to the Court that a neces- sity exists for the filing of such provisional bond, and for the pur- poses of this act the affidavit so filed shall be deemed a schedule of the assigned property until such time as the regular schedule shall ,be filed. Upon the filing of the schedules the amount of the bond will be ■determined finally, and should the provisional bond already filed be deemed sufficient, an order will be granted making such bond as approved the final bond. Subd. 19. Assignee. — Every assignee shall keep full, exact and regular books of account of all receipts, payments and expendi- tures of money by him, which said books shall always, during busi- ness hours, be open to the inspection of any person interested in the trust estate. Subd. 20. In making sales at auction of personal property, the assignee shall give at least ten days' notice of the time and place of the sale and of the articles to be sold by advertisement in one or more newspapers, and he shall give notice of the sale at auction of any real estate at least twenty days before such sale. Upon such sales the assignee shall sell by printed catalogue, in parcels, and shall file a copy of such catalogue, with the prices obtained for the goods sold, with his final account. Subd. 21. When any notice is served on the creditors of the in- solvent, pursuant to the provisions of the statute, or these rules, by mail, every envelope containing such notice shall have upon it a Eule 6] Special Eules of Peactice. 487 ■direction to the postmaster, at the place to which it is sent, to re- turn the same to the sender within ten days unless called for. Upon every application made to the court upon such service, an affidavit shall be presented showing whether any such notices have been returned. Subd. 22. Upon an application made for a general citation, the assignee shall file with his petition his account, with the voucher. Subd. 23. The assignee must file an account in all cases, which shall be referred for examination. Discharge. — No discharge shall be granted an assignee who has not advertised for claims pursuant to section 4: of the statute and the 30th subdivision of this rule. No discharge can be granted an assignee and his sureties in any ■case, whether the creditors have been paid, or have released, or have entered into composition or not, except in a regular proceed- ing for an accounting, under section 2^0 of the act, commenced by petition for citation and citation thereon to all persons interested in the estate. Subd. 24'. Substituted Assignee. — ^Whenever an assignee shall have been removed either on his own petition or on the petition of any person interested in the estate, and another person ap- pointed as assignee in his place and stead, a certified copy of the ■order made on such petition shall be filed and recorded in the clerk's office of the county wherein the original assignment was recorded, and the clerk of the county shall make such suitable entry on the margin of the record of the original assignment as will show the appointment of such substituted assignee, and the said certified copy of the order shall be attached to the original -assignment. Subd. 25. Account of Assignee. — The account of the assignee shall be in the nature of a debit and credit statement; he shall debit himself with the assets as shown in the schedules as filed, and credit himSelf with any decrease as well as expenses. Subd. 26. — The statement of expenditures shall be full and complete, and the vouchers for all payments shall be attached to the account. Subd. 27. The affirmative on the accounting shall be with the assignee, and objections to the account may be presented to the referee in writing, or be brought out on a cross-examination, and '488 Special Teem — Fikst Depaetment. [Kule 8 in the latter case they must be specifically taken and entered in the minutes. 'Subd. 28. The testimony taken shall be signed by the several witnesses, and attached to and filed with a report of the referee. Subd. 29. Report of Referee. — The report of the referee shall show all the jurisdictional facts necessary to confer power on the Court, such as the proper execution and acknowledgment of the assignment, the recording of the same, the filing of the schedules and bond, the advertising for creditors, the issuing of the citation, the presenting of the account, and when any items may be disal- lowed in the account of the assignee, the same shall be fully set out in the report. Subd. 30. Notice to Present Claims. — A copy of the notice of advertisement reqiiiring creditors to present their claims must be mailed to each creditor whose name appears on the books of the assignor, with the postage thereon prepaid, at least thirty days before the days specified in such advertisement, and proof of such, mailing must be required on the application for a final decree, unless personal service thereof is made upon such creditors. Subd. 31. The decision of the referee after the trial of a dis- puted claim under section 26 of the General Assignment Act, shall be filed with the clerk of the court, and a copy served on the defeated party. The court shall, on application of either party, confirm the said report, and the decision of the referee shall be reviewed only by appeal from the order confirming the report to the Appellate Division. RULE vn. There shall be six Special Terms of the Supreme Court for the trial of issues of law and issues of fact triable by the Court, and for the hearing and decision of all other matters and special pro- ceedings not otherwise provided for, to be known respectively as Parts 3, 4, 5, 6, 'I and 8. Each term shall commence on the first Monday of each month, and shall continue until the fourth Friday succeeding the first Monday. RULE VIII. A general calendar of all issues of fact triable by the court without a jury in the county of ISFew York shall be made from Eule 8] Special Rules of Peacticb. 489 time to time as shall be ordered by the Appellate Division of the Supreme Court in the First Department. Such calendar shall continue to be the general calendar for every successive Special Term until a new general calendar is ordered as aforesaid. New cases as they are noticed for trial, shall be placed at the foot of this general calendar, upon filing a note of issue as required by the Code of Civil Procedure. A motion to correct this general cal- endar, or to add to it any cases which had theretofore been upon the calendar of the Special Term of the Supreme Court, or upon the calendar of the Superior Court or Court of Common Pleas, may be made on two days' notice to the opposing party, at Part 3 of the Special Term, on the call of any Friday calendar. There shall also be made up a special calendar, upon which shall be placed all actions against the New York Elevated Pailroad Com- pany, the Metropolitan Elevated Railroad Company and the Man- hattan Elevated Railway Company, to enjoin the use of public streets in the city of New York, which are now pending or whicli shall hereafter be brought for that purpose, which special calendar shall be called and disposed of in Part 6 of the Special Term. There shall also be made up a special calendar upon which shall be placed all issues of law now at issue, and upon which shall be placed, at the foot thereof, new issues of law hereafter noticed for trial. There shall also be made up a special calendar, which shall be knovsm as the preferred calendar, upon which shall be placed all undefended actions for divorce; or for annulment of marriage; or for a separation; all actions entitled under the Code, or the General or Special Rules of Practice to a preference ; all applica- tions for judgment in actions where issues have been framed and sent to a jury for trial ; all applications for final judgment where an interlocutory judgment has been entered and an account has been taken or other proceedings had before a referee ; all motions for a new trial upon exceptions or on the ground of surprise or newly discovered evidence; and exceptions to and motions to con- firm a referee's report in special proceedings, including surplus money proceedings, and in actions in which an issue of fact has been tried by a referee where application to the court for final judgment or a final order is necessary ; all applications for the ap- pointment of commissioners; for a final order or final judgment in proceedings to condemn real estate for public use ; and all appli- 4&0 Special Teem — Tiest Depaetment. [Rule 9 cations for final order in certiorari proceedings or in proceedings where an alternative writ o£ mandamus has been issued. The special preferred calendar, and the special calendar of issues of law, herein provided for shall be called and disposed of in Part 3 of the Special Term; provided, however, that the justice as- signed to Part 3 may, from time to time, assign preferred cases and issues of law from such calendars to the parts of the Special Term other than Part 6, except as provided in Rule 9, for hearing and decision. Applications for final judgment in actions to annul a marriage, or for a divorce, shall be made at Special Term, Part 3, upon the judgment-roll, a certificate of the county clerk that no order has been entered in the action since the entry 6f the inter- locutory judgment, or if any such order or orders have been en- tered, that copies thereof are annexed to his certificate and proof by affidavits that no application has been made for an order to the knowledge of the party making application, or his attorney, except where an order has been granted, and a certified copy of such order is annexed to the certificate of the county clerk. Where, in such an action, a party other than the party making the application has appeared in the action, five days' notice of such application, with the papers upon which the same was made and a copy of the pro- posed final judgment, shall be served upon the attorney who has appeared in the action. In a proceeding for the revocation of a liquor tax certificate, when the issue has been joined, the proceeding shall be placed "upon the preferred calendar called in Special Term, Part 3, and disposed of as other cases upon the said calendar. In case, how- ever, that issue is joined in such a proceeding too late to place it on the calendar of the June Special Term in any year, it may be brought on by either party during July, August and September, at Special Term, Part 2, and there heard and determined. In case a proceeding is not so brought on in Part 2 as hereinbefore provided before the first Monday in October, it shall be placed upon the preferred calendar to be called at Special Term, Part 3, for the October term. RULE IX. The clerk of Part 3 of the Special Term, with the assistance of the special deputy clerk assigned to such part, and of the clerk of Part 4, shall each week make up a calendar of cases from the Eule 9] Special Rules of Peactioe. 491 general calendar for trial at Special Term, which calendar shall be published at least two days before the same is called. This cal- endar shall be called by the justice assigned to the Special Term, Part 3, on Friday, of each week, at two o'clock p. m., unless an- other day is specially fixed by him to call such calendar. Causes on such calendar may be set down for trial on any day in the week following. In case it should appear, upon the call of the calendar on Friday, that the number of causes set down for trial on the fol- lowing week will not be sufficient to occupy the available time of all the Special Terms of the court assigned to the trial of equity causes, the justice of the Supreme Court, assigned to the Special Term, Part 3, shall order a calendar of causes from the general calendar to be made up and to be called upon Wednesday morning following at ten o'clock. Upon the call of such calendar, causes may be set down for any day of the week in which the calendar is so called, or for the suc- ceeding week. The said clerks shall make up a day calendar for each day from the general Special Term calendar of the court, upon which shall be placed all the causes set down for that day or remaining undis- posed of from previous days, which day calendar shall be called in Part 3 of the Special Term, at 10': 15 a. m. of each day, and causes therefrom shall be assigned to the several parts of the Special Term (except Part 6), for trial. In case Part 6 shall not have business enough to occupy it during court hours, cases from Part 3 shall be sent to it for trial. When a cause thus set down on the call of the calendar on any Friday or Wednesday for trial appears upon the day calendar, it must be tried or go to the foot of the general calendar, unless it appears by affidavit to the satisfaction of the court calling the day calendar that, in consequence of the happening of any event since the cause was so set down for trial, the trial cannot with justice to one of the parties proceed. The court may then by order set the cause down for trial on another day in the term, or place the cause on the Friday calendar. In a cause upon the day calendar for trial where it shall appear to the court by affidavit that counsel who is to try the cause is to argue upon the day cal- endar of the Svipreme Court of the United States or upon the day calendar of the Court of Appeals of the State of ISTew York, or 492 Special Teem — First Depaetment. [Eule 13 upon the day calendar of any Appellate Division of the Supreme Court, or is actually engaged in the trial of a cause in a court of record in the counties of New York or Kings, the cause shall he passed for the day or until such argument or trial is concluded, unless the trial in which the counsel is engaged is a protracted one. In no other event shall a cause upon the day calendar be passed for the day. EULE X. In no event shall a cause on the day calendar be passed from day to day on account of the engagement of counsel for more than three days. Not more than two causes shall be held ready on the day calendar for one counsel in addition to the cause in which he is engaged, and in all causes the coimsel who is to try the same must be designated, if required by the court, on the call of the day calendar. RUIE XI. In all actions brought for the foreclosure of a mortgage or for the foreclosure of mechanics' liens, either party may apply to the Special Term, Part 3, upon notice of two days to the adverse party to have the case placed upon the preferred calendar, to be called in Part 3 of the Special Term, and if it shall appear to the court upon such application that the trial will not be a pro- tracted one, or that for any special reason the case should be promptly disposed of, it shall be placed upon the preferred cal- endar for trial. RULE XII. In all actions in which a preference is given by express pro- vision of law, or by the General Rules of Practice or by special rules, the party entitled to such preference may, upon two days' notice, apply to Special Term, Part 3, for an order placing the cause upon the preferred calendar. In case such preference is granted, the case shall be placed upon the preferred calendar as of the date when the motion was made, and shall be called in its order. RUIE xin. No Special Term shall be continued beyond the Friday pre- ceding the commencement of a new term, except for the purpose Eule 14] Special Eules of Pkactice. 493 of completing a trial already commenced during the term, in which case immediately upon the completion of the trial, the court shall adjourn for the term. EULE XIV. Segulating the Procedure Upon Applications for Naturalization in the First Judicial District. AH applications of aliens to be admitted to become citizens of the United States must be heard and final action had thereon at Part 2 of the Special Term. Such hearings shall be had only upon Mondays, Wednesdays and Thursdays of each week during the year, which are hereby designated as the stated days for such applications. The application which is required by chapter 927 of the Laws of 1895 to be filed with the clerk of the court shall be so filed with the assistant clerk of such Special Term assigned to that branch of the business. Such application shall specify the stated day (more than fourten davs thereafter) when such ap- plications will be brought on for hearing and final action. The assistant clerk assigned to naturalization business shall make up a calendar of such applications for each of said stated days, upon which he will place all such applications in the order of filing, for the days specified in the application. The calendar will be called at two o'clock in the afternoon upon each stated day. The hearing upon such applications shall be had upon the call of the calendar and the testimony of the applicant and his wit- nesses shall be thereupon taken in open court. Such testimony shall be taken down by the stenographer assigned to that branch of the court, and shall be written out and filed with the appli- cation. If the applicant fail to appear upon the call of the calendar, the application will be dismissed without prejudice to a fresh application. The special deputy to the clerk of the city and county of 'New York, in Part 8 of the Special Term, is hereby directed, at all times until a justice is assigned to hold said part, to act as an additional assistant to the clerk assigned to naturalization business, and to devote his entire time to the duties of what is known as the JSTaturalizatlon Bureau; under the general direction of the special deputy in Part 2 of the Special Term and of the assistants to such deputy in said ISTaturalization Bureau. 494 Supreme Couet — Fiest Depaetment. [Eule 1 RTILE XV. All sales of real estate, or interest or estate therein made in pursuance of any judgment, decree or order, or by an officer of the court under its direction must be made as directed by sec- tion 1678 of the Code, and notice of such sale must be given as prescribed in that section. The referee or officer making such sale shall cause to be pub- lished with the notice of sale a diagram of the property to be sold or of which an interest therein is to be sold, showing the street or avenue upon which such property is located, its street or avenue number, if any, and specifying the number of feet to the nearest cross street or avenue. Where such sale is made to satisfy any lien or charge upon the real property sold, the approximate amount of such lien or charge shall be stated in a note annexed to such notice of sale, and where there are taxes, assessments or other liens upon the said property, which are to be allowed to the purchaser out of the purchase money, or which are to be paid by the referee, the referee or officer making such sale shall also state in a note annexed to such notice of sale the approximate amount of such charge or lien. An unintentional error, however, in such diagram, or in the amount of the lien or charge for which the property shall be sold, or the amount of such taxes or other lien to be allowed to the purchaser upon the sale, shall not invalidate the sale, nor authorize the court to relieve the purchaser, or order a new sale. RULES TO REGULATE THE ATTENDANCE AND PRESCRIBE THE DUTIES OF THE CLERKS, ASSISTANT CLERKS, CRIERS, INTER- PRETERS, STENOGRAPHERS, LIBRARIANS AND ATTENDANTS OF THE SUPREME COURT. RULE I. The special deputy to the clerk of the city and county of New York, assigned to each Special and Trial Term of the Supreme Court shall attend on each day that the court is in session and remain in attendance while the court is in session. The special deputy clerk assigned to Part 2 of the Trial Terms shall have charge of the general and special calendars of the Trial Terms. The assistants to such special deputy clerk shall, in turn, as re- Eule 1] Special Eules of Peactice. 495 quired by him, attend in Part 2 of the Court. All orders relating to the calendar, and all notes of issue of cases to be placed upon the calendar, shall be filed with the clerk of Part 2 of the Trial Term. He shall attend each Friday or Wednesday call of the calendar, shall make up the general and special calendars of such Trial Terms, and shall make up a day calendar for each day of the term when the court is in session. The clerk assigned to the other Trial Terms of the Supreme Court shall render him assist- ance when he requires it, when they are not actually engaged in their branch of the court. The special deputy to the county clerk assigned to Part 3 of the Special Term of the Supreme Court shall have charge of the general and special calendars of the Special Term, and all notes of issue of cases to be placed upon the Special Term calendar and orders relating to the calendar shall be filed with him. There shall be two assistant clerks to Part 3 of the Special Term, who shall in turn, as directed by such special deputy clerk, attend the sitting of that part, and who shall assist the clerk thereof in preparing the calendar. Special deputy clerks assigned to the other Special Terms shall render the special deputy of Part 3 such assistance as he shall require when the courts to which they are respectively assigned .are not in session. The special deputy clerk assigned to each Trial and Special Term of the Court shall, subject to the supervision of the justice assigned thereto, be responsible for the proper condition of the court room, for the supply of stationery and for the attendance of the officers or attendants assigned to such Special and Trial Terms, and for the performance by such officers or attendants of their respective duties. He shall keep a book in which shall be entered the time at which the officers or attendants assigned to that part of the court shall appear and remain in court, and shall transmit at the end of each month, to the Appellate Division of the Supreme Court, a copy of such record. The special deputy clerk assigned to the Special Term for the hearing of motions shall make up a day calendar of motions to be heard each day (not later than three o'clock for the succeeding day) and shall cause the same to be published in the " Law Journal." He shall attend at the call of the calendar and render such assistance as the justice assigned to that term of the court 496 SuPEEME CouET — FiEST Depaetment. [Rule 1 shall require. The two assistant clerks assigned to that part of the court shall attend each day from 10 o'clock in the morning until 4 o'clock in the afternoon, or as much later as may be necessary and shall perform such duties as the deputy clerk assigned to that part of the court shall require. The deputy clerk assigned to the Special Term for the transaction of ex -parte business shall attend from 10 o'clock in the morning until 4 o'clock in the afternoon or as much later as the justice assigned to that branch of the court shall require, and shall render to the justice such assistance as he shall require. The two assistant clerks assigned to that part of the court shall keep the records of the court and shall perform such additional duties as are required by the clerk. There shall be three additional assistants to such clerk (to be assigned to this part of the Special Term) who shall have charge of the records of naturalization heretofore kept in the offices of the clerk of the city and county of New York, the clerk of the Superior Court of the City of New York, and the clerk of the Court of Common Pleas for the city and county of New York, who shall attend to applications for naturalization and keep the books and records relating thereto, and who shall perform such additional duties as said special deputy clerk shall require. There shall be two other additional assistants to such special deputy clerk (to be assigned to this branch of the court), who shall have charge of the records relating to assignments for the benefit of creditors and who shall perform all the clerical duties relating thereto. They shall also perform generally such duties as may be required of them by the justice assigned to this branch of the court by the clerk thereof. The assistants to this branch of the Special Term shall attend the office provided for them in the County Court House, in the city of New York, at 10 o'clock in the morning and shall remain until 4 o'clock in the afternoon, and so much later as shall be necessary. The clerk assigned to the term for the hearing of appeals from the City Court and District Courts in the city of New York shall attend the sitting of the Appellate Term while in session, shall keep the records of such court and perform such duties in addition as shall be required of him by the justices assigned to hold such term. When the court is not in session he shall attend each day from 10 in the morning until 4 o'clock in the afternoon, and when not occupied with the business of sucli E.ule 3] Special Rules of Practice. 497i appellate branch he shall assist the special deputy clerks of Part 2 of the Trial Term, and of Part 3 of the Special Term, and pre- form such other duties as may be required of him by any justice of the Supreme Court. RTJIE n. There shall be a stenographer attached to each Special and Trial Term of the Supreme Court, whose duty it shall be to attend at the session of the Court to which he is assigned. In case his services are not needed in the Court to which he is as- signed, it shall be his duty to attend any other term of the Court at which his services shall be required, either by the justice presid- ing at such other term or by the special deputy clerk attached thereto. The stenographers assigned to the Special or Trial Terms of the Supreme Court must attend in the Court House each day at ten o'clock in the morning, and remain as long as he is required to remain by the justice presiding at the part to which he is assigned. They shall also render such asistanee to any jus- tice of the court as he shall require. In case of the absence of any stenographer from the part to which he is assigned, owing to ilbiess, or when owing to an accumulation of work, any such stenographer shall be permitted by the justice presiding in such part to absent himself for a definite period from the daily sittings of the court, for the purpose of enabling him to write out the testi- mony taken by him, such stenographer may, subject to the ap- proval of such justice, select another stenographer to take his place during such temporary absence. Such temporary stenographer shall, before acting, take the oath of office. He shall be paid by the official stenographer whose place he takes, and his services shall not be a charge upon the city or county of Kew York. RTTIE in. It shall be the duty of the librarian to take charge of the library of the Appellate Division of the Supreme Court, to attend in the room of such library each day during the session of the court when the court is in session ; and when not in session from 10 o'clock in the morning until 4 o'clock in the afternoon, or as much longer as he shall be required by either of the justices of the Appellate 32 498 SUPEEME COUET FlEST Depaetmekt. [Eule 4 Division, and to perform generally such duties in relation to such library as either of the said justices shall require. He shall be responsible for all the books in the library, and shall see to it that all books removed from the library to the court room, or elsewhere, ' are returned to the library, and shall be responsible generally for ^ the safe-keeping and proper condition of the books and furniture ;' in the library room. The assistant to the librarian shall have ' charge of the library for the use of the justices of the Supreme Court. He shall attend at the County Court House from 10 o'clock in the morning, until 4 o'clock in the afternoon, and as much longer as any justice of the Supreme Court shall require, and he shall be responsible for the safety and condition of the books in the library and of the furniture in the library room, and for the return of all books taken to the court rooms or elsewhere. Wo books appertaining to that library shall, under any circum- stances, be removed from the County Court House, and the assist- ant librarian shall enforce all orders in regard to the safe-keeping and preservation of such books as shall be made from time to time by a justice of the Supreme Court. RULE IV. The justices of the Appellate Division of the Supreme Court in the Eirst Department will detail one of the interpreters to act as chief interpreter, whose duty it will be to attend at the Court House on each day, except on Sundays and legal holidays, from 10 o'clock in the morning until 4 o'clock in the afternoon and until each Trial and Special Term of the court shall have ad- journed. He shall keep a record, in a book to be provided for the purpose, of the time on each day at which each interpreter of the court shall report for duty and the time at which each inter- preter leaves the Court House. He shall assign each interpreter to duty in the particular branch of the court at which his services are required, and shall make a monthly report to the presiding justice of the Supreme Court in the First Department as to the attendance of interpreters, specifying the days and portions of days that each interpreter shall have been absent and the manner in which each of the interpreters has performed his duties, and with such other recommendations as he shall consider proper. He shall at all times obey the directions of any of the justices of the Rule 5] Special Eules of Practice. 499 Supreme Court as to the performance of his duties and furnish interpreters for the several parts of the court when called upon to do so. The other interpreters shall attend on each day, except on Sundays and legal holidays, from ten o'clock in the morning until four o'clock in the afternoon, and as much later as any hranch of the court is in session. They shall be under the general direction of the chief interpreter and shall attend at each branch of the court as required either by him or by a justice of the Su- preme Court. Each interpreter shall also render any service re- quired by any justice of the Supreme Court, whether in court or out of court. They shall report to the chief interpreter their arrival at and departure from the Court House and generally shall obey his instructions in regard to the performance of their duties. When not actually engaged at a term of the court the interpreters will be in attendance at a room to be provided for that purpose, so as to be always available when their services are required. RULE V. The crier of the Appellate Division of the Supreme Court shall assign the attendants to the Appellate Division and to the various Special and Trial Terms of the Supreme Court. He shall have general charge of all the attendants and it shall be his duty to see that they properly perform their duties. He shall report to the Appellate Division of the Supreme Court any one of such attend- ants who fails to attend and perform the duties required of him, or who in any way misconducts himself. He shall attend at each session of the Appellate Division of the Supreme Court and shall open and adjourn said court except when his attendance is dis- pensed with by the presiding justice. He shall make a report each month to the Appellate Division of any violation of any of the rules of the court of which he is cognizant, and shall perform such other duties as the presiding justice or the Appellate Division shall require. The assistant to the said crier shall attend at the County Court House in the city of New York, on each day from ten o'clock in the morning until four o'clock in the afternoon, and as much longer as his attendance shall be required by any of the justices of the court, or while any branch of the court is in session. In the absence of the crier, he shall perform all the duties of the 500 StTPEEME CouET — FiEST Depaetment. [Rule 4: crier, and shall perforin such other duties as any justice of the Supreme Court, or the crier, shall require. The assistant crier shall wear while in court, or in the discharge of his duties, a uni- form such as is now established for the crier of the Supreme Court. RULE VI. The attendants shall each day attend the various branches or terms of the court to which they are assigned by the crier from ten o'clock in the morning until four o'clock in the afternoon, or so much longer as the court is in session or as a justice of the Su- preme Court requires them to attend. They shall report to the clerk of the parts to which they are assigned the hour of their arrival and before they leave. They shall wear the uniform now prescribed for the attendants of the Supreme Court. In addition to their ordinary duties in court they shall perform such other duties as may be required of them by a Justice of the Supreme Court, by the special deputy clerk of the part to which they are assigned, or by the crier or assistant to the crier. RULE vn. The special deputy clerk assigned to each of the Trial Terms of the court shall, within five days after the discharge from serv- ice of each of the panels of the trial jurors, make a full and com- plete return to the commissioners of jurors and to the special deputy clerk of Part 4 of the Trial Term, showing : 1. The name and residence of each juror who attended and served ; the number of days the juror attended for the purpose of serving, and the number of days he actually served. 2. The name and residence of each juror who was excused or discharged, with the reason therefor. 3. The name and residence of each juror notified who did not attend or serve. 4. The name and residence of each person fined, and the date and amount of his fine, and the part of the court at which the fine was imposed, and the name of the justice who held the same (unless the fine has been remitted). The special deputy clerk of Part 4 shall keep a record show- ing all the above facts in reference to all the jurors notified to at- Rule 3] Special Eules of Peactice. 501 tend at any of the Trial Terms of &aid court, and shall, within ten days after the discharge from service of each of the panels of trial jurors, make a return to the counsel to the corporation of all fines imposed, which return shall give the name of each person fined, his address, the amount of the fine, the date when imposed, the part of the court at which the fine was imposed, and the name of the justice who held the same. Appellate Division Rules. FIRST DEPAETMENT. (Amended to July i, igio.) RULE I. The court will open at one o'clock and continue xmtil five o'clock in the afternoon, unless sooner adjourned, except that on the first and third Fridays of each term the court will open at half past ten in the forenoon. RULE n. The first and third Fridays of each term and such days as shall be designated for hearing appeals from orders in the months of July, August or September shall be motion days. The clerk will make up a calendar for each motion day of all motions noticed to be heard on that day. A note of issue stating the nature of the motion and the day for which it has been noticed must be filed with the clerk 'before twelve o'clock noon on the Thursday preceding the Friday for which the motion is noticed. ISTo motion not upon such calendar will be heard. All ex parte ap.plications must be made upon motion days, ex- cept by special permission of the court. RULE m. Appeals from orders will be heard only upon motion days, the calendar of which will be taken up immediately after the dis- position of the motion calendar. On the argumemt of such ap- peals not more than fifteen minutes will be allowed' to each side. 502 Appellate Division — Fiest Department. [Rule 5 except when the court otherwise orders. Appeals from orders which have been placed upon the calendar may be submitted by the parties, with the approbation of the court, at any time during the term, upon delivering to and leaving with the clerk the requi- site number of printed copies of the points. RULE IV. Appeals from orders may be noticed for argument on any mo- tion day. The appellant or moving party must file with the clerk of the Appellate Division, at least eight days before the day upon which such appeal shall have been noticed, a note of issue, which shall state the day upon which the notice of appeal shall have been served, and sixteen copies of the papers upon which the appeal is to be heard, printed as required by Kule 41 of the General Rules of Practice, with an affidavit showing the service of three copies thereof upon the attorney for the respondent, together with a no- tic« of argument of the appeal with admission or proof of service ; and the Clerk shall thereupon place the appeal upon the calendar for the day upon which such appeal shall have been noticed. If an appeal shall have been noticed for argument by the respondent, and the appellant or other party whose duty it is to file sixteen copies of the papers upon which the appeal is to be heard, printed as required by the General Rules of Practice shall fail to file the game at least eight days before the day for which such appeal is noticed the opposite party may move upon afildavit and upon four days notice of motion that the appeal be dismissed or that judg- ment be rendered in his favor. At any time before three o'clock of the day preceding the day upon which a nonenumerated case shall have been noticed for argument, or to which the hearing thereof shall have been ad- journed, the respective coimsel may file a written consent with the clerk that the case may be set down for a subsequent motion day ; and cases set down will be added to the calendar of that day at the foot of the cases remaining thereon undisposed of without further notice. RUIE V. The clerk will make up a calendar of enumerated cases for each term of the court, which shall consist of the enumerated cases Hule 6] Special Eules of Peactice. 503 upon the calendar of the preceding term undisposed of, and which shall not have been passed twice upon any of the previous calendars of the court, to which shall be added new cases which shall have been noticed as hereafter provided. The appellant or moving party must file with the clerk of the Appellate Division, at least fifteen days before the commencement of the term for which the case has. 'been noticed for argument, a note of issue, which shall state the day upon which the notice of appeal has been served, and sixteen copies of the papers upon which the case is to be heard, printed as -required by the General Rules of Practice, with an affidavit showing the service of three printed! copies thereof upon the attorney for the respondent, together vsdth the notice of argumeait of the case or notice with admission or proof of service. If an appeal shall have been noticed for argument by the re- spondent, and the appellant or other party whose duty it is to file sixteen copies of the papers upon which the appeal is to be heard, printed as required by the General Rules of Practice, or sixteen copies of the points to be relied on by him, shall fail to file the same at least fifteen days before the day for which such appeal is noticed, the opposite party may move, upon affidavit and upon four days' notice -of motion, that the appeal be dismissed or that judgment be rendered in his favor. Cases entitled by law to a preference, when such preference is claimed in the note of issue, shall be placed at the head of the calendar. RULE VI. At least fifteen dkys before the commencement of the term for which an enumerated case has been noticed for argument the ap- pellant, the plaintiff in a controversy submitted to the court under section 12^9 of the-Code of Civil Procedure, the relator in a writ of certiorari, or the moving party in any case to be heard as an enumerated case, shall file with the clerk sixteen printed copies and shall serve on the attorney for the respondents three printed ■copies of the points to be relied upon by him, with a reference to the authorities to be cited. Within ten days after such service "the respondent shall file with the clerk sixteen printed copies and serve on the attorney for the appellant three printed copies of the points to be relied upon by him, with a reference to the au- 504 Appellate Division — Fiest Depaetment. [Rule 5 thorities to he cited. If the appellaiii desires to present points or authorities in reply he shall file with the clerk sixteen printed copies and serve three printed copies thereof on the attorney for the respondent within fivei days after the receipt of the ^-espond- ent's points, and no sufeequent points will be received from either side unless specially requested by the court. No points will be received by the court on the argument or submission of the ap- peal unless they shall have been filed and" served as above pro- vided. At four- o'clock on each day the clerk vrill make up a cal- endar of fifteen enumerated cases for the next day. A case on such day calendar will not be reserved or postponed except by order of the court upon> special cause shown. At any time after the filing of a note of issUe i^i an enumerated cause and before it shall have been placed on the day calendar a written consent, signed by the attorneys or counsel who are to argue the case, that the appeal be set down for any future day of th« term prior to the third Thursday thereof may be filed with the clerk, and such case shall be placed on the day calendar for such day at the end of the cases remaining thereon undisposed of in the order upon which they have been set down, provided that no more than fif- teen cases shall be placed on any day calendar, and provided that such cases would have been reached on the General Calendar if not so set down. If a respondent is in default in the filing and serving of the points, as hereinbefore provided, he will not be heard, except by special leave of the court. RULE vn. In any case in which the printed' copies of the papers upon which an appeal is to be heard shall have been filed with the clerk of the Appellate Division, as required by Rule 41 of the General Rules of Practice and the printed copies of the points filed with the clerk, as required by Rule 6 of the Rules of the Appellate Division for the First Department, either party may, by a written stipulation filed with the clerk, submit the appeal upon the printed papers and points filed as aforesaid. RULE vin. Motions for reargument must be noticed for the term succeeding that upon which the appeal was decided. Such motions will only be Eule 10] Special Rules of Pbactiob. 505 heard on notice to the adverse party, stating briefly the grounds upon which a reargument is asked; and such motion musit be submitted on printed briefs stating concisely the points supposed to have been overlooked or misapprehended by the court, anid with proper reference to the particular portion of the case and the au- thorities relied upon, and a printed copy of the opinion, and counsel will not be heard orally. RULE IX. 'No brief or memorandum of authorities will be received by the court after the argument of a motion or an appeal, unless permis- sion be given' by the court for its submission after notice to op- posing counsel of the application for such permission. In the event of counsel having cases upon the day calendars of the Appellate Divisions of the First and Second Departments on the same day, such counsel shall attend the court in that depart- ment in which his case stands nearest the head of such day cal- endar; and his case upon the calendar of the other department will be held until the argument of the case is finished in the department in which he is first required to attend. In the event of counsel having cases upon each of the day calendars of the said departments upon the same day, which stands equally distant from the heads of the respective day calendars, such counsel shall attend court in the Mrst Department. RULE X. (Adopted October ii, 1904.) 'Applications " to a justice of the Appellate Division of the First Judicial Department," under section 1344 of the 'Code of iCivil Procedure, for the allowance of an appeal to be taken to such Appellate Division from the de*termination of the justices designated to hear appeals from the 'City Court of the city of N"ew York and the Municipal 'Courts of the boroughs of Man- hattan and the Bronx, may be made upon any motion day prior to the expiration of the second term of the Appellate Division, after such determination; and must be upon notice of two days to the opposite party or partiesi, and a note of issue filed, and tie same put upon the calendar of motions in the manner pro- 506 Appellate Division — First Depaktment. [Kule 11 vided by Eule 3 of the Appellate Division Eules relating to the hearing of motions. The papers upon whioh fiuch application is made must contain a copy of the opinion of the justices below, if any, a concise statement of the grounds of alleged error, and proof of due service of the papers upon which the application is founded. Upon the calling of the motion calendar, such application must he sub- mitted without argument. Such applications will not be entertained unless an application for leave to appeal has first been made to tbe justices by whom such determination was made, in the manner provided by Rule 7 for the regulation of the hearing of appeals from the City Court of the city of New York and the Municipal Courts of the bor- oughs of Manhattan and the Bronx, and has been denied. RULE XI. Every application for admission to practice as an attorney and counselor-at-law made by a person who has been admitted to prac- tice and has practiced three years as an attorney and oounsielor-at- law in the highsst court of law of another State, under Rule II of the Rules of the Court of Appeals for the admission of attorneys and counselors-at-law, shall be referred to the Com- mittee on Character, who shall report to the court upon the character of the applicant and his qualifications to be admitted to practice in the courts of this State, and no person will be ad- mitted to practice on such application until after the Committee on Character shall have made its report. APPELLATE DIVISION — SUPREME COURT — ELECTION CASES. The justices of the Appellate Division of the Supreme Court in the First Judicial Department do hereby make and establish the following rules to promote the efficient administration of jus- tice in relation to the hearing and determination of any ques- tions arising under the Election Law (chapter 909 of the Laws of 1896, and the amendments thereto). Rule 1. All applications to the Supreme Court or a justice thereof to review the determination and acts of the election offi- Kule 2] Special Eules of Peacticb. 507 «ers under section 5'6 of the Election Law (chapter 90'9 of the Laws of 1896, as amended) ; all applications for a writ of man- damus under section 114 of the said Election Law, and all other applications to the Supreme Court or a justice thereof under any of the other provisions of the said Election Law, shall be made to Special Term, Part 1 of the Supreme Court of the First Judi- cial District. The justice assigned to such term may hear and determine any such proceeding or may assign any such proceed- ing to the other parts of the Special Term for hearing and de- cision, and such application shall have precedence over all other ■husinesis at any part of the Special Term. The final order deter- mining such special proceeding should in each case state the facts found by the Special Term upon which the determination is made and the determination of the court upon the facts thus stated. Rule 2. Appeal from any fijial order entered in a proceeding specified in Rule 1 shall be brought on for hearing at such time on such day as the Appellate Division shall designate by an order which will be gramted on the application of any party to such a special proceeding. Rules of the Appellate Division of the Supreme Court. (Secont) Judicial Department.) Selating to the Calendar, Admission of Attorneys, Naturalization and Appeals from the Municipal Court. Enumerated Calendar. Sixteen (16) copies of the cases must be delivered to the clerk before the commencement of the argument. At least ten days before a cause is placed on the day calendar the appellant shall file with the clerk sixteen printed copies and serve on the attorney for the respondent three printed copies of his brief and points. Within five days after such service the re- spondent shall file with the clerk sixteen printed copies and serve on the attorney for the appellant three printed copies of his brief and points. If the appellant desires to present brief or points in reply, he shall file with the clerk sixteen printed copies thereof and serve three printed copies on the attorney for the respondent within three days after the receipt of the respondent's points. 508 Appellate Division — Second Department. When according to this rule, an appellant is in default, the appeal may, without previous notice, be dismissed on motion, when the case is reached for argument, and when a respondent is in default, he will not be heard except by leave of the court. This rule shall not apply to appeals from orders, or appeals from the Municipal Court of the city of New York. Non-Enumeeated Calendae. Sixteen (16) copies of the appeal papers and points must be delivered to the clerk before the commencement of the argument. (Attention is called to General Eule 41. ) ■ — If this rule is not strictly complied with, such causes as are therein referred to, cannot be placed upon the calendar, RULE 41. General Rules. In all cases to be heard in the Appellate Division, except ap- peal from nonenumerated motions, the papers shall be furnished by the appellant or tie moving party, and cases agreed upon, under section 1279 of the Code, by the plaintiff. The party whose duty it is to furnish the papers, shall cause a printed copy of the requisite papers to be filed in the office of the clerk of the Ap- pellate Division, within twenty days after an appeal has been taken, or the order made for the hearing of a cause therein, or the agreed case filed in the clerk's office, pursuant to section 1279 of the Code; but if it shall be necessary to make a case, or case and exceptions, after the appeal shall have been taken, or the order made for the hearing in the Appellate Division, the papers shall be filed within twenty days after the settlement and filing of the case ; and shall serve upon his adversary three printed copies of such papers. Such papers shall consist of a notice of appeal, if an appeal has been taken, a copy of the judgment-roll or the decree in the court below, and the papers upon which it was entered ; if no judgment was entered, the pleadings, minutes of trial, and the order sending the case to tbe Appellate Division or the order appealed from, or the papers required by section 1280 of the Code of Civil Procedure. To these papers shall be Eule 41] Special Eules of Practice. 509 attached the case, or case and exceptions, if it is to be used in the Appellate Division. All the foregoing papers shall be certified by the proper clerk, or be stipulated by the parties to be true copies of the original. There shall be prefixed to these papers a statement showing the time of the beginning of the action or special proceeding and of the service of the respective pleadings ; the names of the original parties in full; and any change in the parties if such has taken place. There shall be added to them the opinion of the court below or an affidavit that no opinion was given, or, if given, that copy could not be procured. The foregoing papers shall constitute the record in the Appellate Divi- sion. If the papers shall not be filed and served as herein pro- vided by the party whose duty it is to do so, his opponent may move the court on three days' notice, on any motion day, for an order dismissing the appeal, or for a judgment in his favor, as the case may be. The papers in all appeals from nonenumerated motions shall consist of printed copies of the papers which were used in the court below, and are specified in the order, certified by the proper clerk or stipulated by the parties to be true copies of the original, and of the whole thereof. There shall be added to them the opinion of the court below, or an affidavit that no opinion was given, or, if given, that a copy could not be procured. They shall be filed with the clerk within fifteen days after the appeal is taken and at the same time the appellant shall serve upon his ad- versary three printed copies thereof. If the appellant fails to file and serve the papers as aforesaid, the respondent may move, on any motion day, upon three days' notice, to dismiss the appeal. (Attention is called to section 1353, Code of Civil Procedure.) Section 1353. Upon what papers appeal to be heard. — An ap- peal from a final judgment, taken as prescribed in this title, must be heard upon a certified copy of the notice of appeal, of the judgment-roll, and of the case or notice of exceptions, if any, filed, as prescribed by law, or the general rules of practice after the entry of the judgment and either before or after the appeal is taken. An appeal from an interlocutory judgment, or from an order, taken as prescribed in this title, must be heard upon a 510 Appellate Division — Second Depaetment. [Rule 2 certified copy of the notice of appeal and of the papers used before the court, judge or justice, upon the hearing of the demurrer, ap- plication for judgment, or motion as the case requires. Unless the Appellate Division shall in a special case otherwise direct, before an appeal shall be placed upon the calendar, the appellant shall file with the clerk of the Appellate Division the case and exceptions or the other papers, upon which the appeal shall be heard, printed as required by the rules of practice; in case the appeal is from a judgment, the printed case and exceptions must be ordered filed by the justice or referee before whom the case was tried. (Amended by ch. 946 of 185-^.) In the event of counsel having cases upon the day calendars of the Appellate Divisions of the First and Second Departments on the same day, such counsel shall attend the court in that de- partment in which his case stands nearest the head of such day calendar; and his case upon the calendar of the other department will be held until the argument of the case is finished in the department in which he is first required to attend. In the event of counsel having cases upon each of the day calendars of said departments upon the same day, which stand equally distant from the heads of the respective day calendars, such counsel shall attend court in the First Department. CALENDAR PRACTICE. RULE I. Appeals from orders, heard as nonenuraerated motions, will be placed upon a separate calendar and called upon the first day of the term. RULE n. A new calendar will be made up for the January Term. Cal- endars for subsequent terms during the year will be made up by adding to the calendar of the previous term all new appeals to be placed in regular order, according to the date of appeal on com- pliance with the requirements hereinbefore prescribed. An ap- peal passed during any term may be brought on for argument on any day during a subsequent term upon stipulation, or upon four days' notice to the opposing party and on filing with the Kule 7] Special Rules of Pkactice. 511 clerk such stipulation or proof of service of such notice, the clerk will cause the appeal to be placed on the day calendar of the day named in such notice or stipulation. RULE in. Appeal from orders will also be heard on the third Monday of each term, and notices of argument may be given for such day, and the calendar for such day will consist of causes not called on the first Monday, and other causes in which the appeal papers and affidavit of service thereof have been filed with the clerk, as required by section 1353 of the Code of Civil Procedure and the General Rules of Practice. RTJIE IV. Nonenumerated causes will be placed upon the day calendar for the first and third Mondays of the term, and the hearing of such causes will continue from day to day until completed. The calendar for other days will consist of as many causes as shall be placed thereon from the general calendar in their numerical order. RULE V. Causes can be reserved by consent for a day subsequent to the time when they would be reached in their order only when a stipu- lation to that effect is filed with the clerk before the day calendar is made up (1 o'clock p. m.). RULE VI. Motions, other than appeals from orders, will be heard on the first and third Mondays of the term, and notes of issue therefor must be filed with the clerk at least two days before the day for which they are noticed. RULE vn. Notes of issue in appeals from orders. — No appeal from an order will be heard unless it is placed on the nonenumerated calendar. The attorney or party intending to move such an ap- peal for argument shall, at least eight days before the time of the 512 Appellate Division — Second Department. [Rule 11 making up of the calendar, filed witli the clerk a note of issue, specifying the date of the service of the notice or appeal and stating that the cause is to be put on the nonenumerated calendar. No cause shall be put on the enumerated or nonenumerated cal- endar until the papers required by General Eule 41 shall have been filed with the clerk. EULE vm. Notes of issue in preferred causes. — ^A party who desires to have a cause heard as a preferred cause, must, in his note of issue, state his claim for preference, as provided in section 793 of the Code ; or if an order giving the cause a preference has been made under that section, the note of issue must be accompanied with a copy of such order. The clerk, in making up the calendar, shall place such preferred causes at the head of the general calendar, indicating that they are preferred, and that class to which they belong. RTTIE IX. Criminal causes may be put upon the calendar at any time. — Appeals in criminal causes, brought after making up the calendar, or too late to be placed upon the calendar, may be put upon the calendar at any time, and brought on for hearing as preferred causes, upon a notice of ten days to the adverse party, as pro- vided in section 535 of the Criminal Code. A note of issue must be filed with the clerk at least five days before the day on which the cause is to be heard, and he shall put the same upon the cal- endar for the day on which it shall be noticed, or upon which it shall be ordered by the court, or stipulated by the parties to be heard. RULE X. Indorsement on brief. — In order to facilitate the work of tie reporter the counsel who argues the cause orally shall indorse his name on upper right-hand corner of first page of brief. RUIE XL Motions for reargument. — Motions for reargument will be heard only on notice to the adverse party, stating briefly the Kizle 13] Special Eules of Peactice. 513 ground upon which a reargument is asked, and such motions must be submitted upon printed briefs, stating concisely the points supposed to have been overlooked or misapprehended by the court with proper reference to the particular portion of the case and the authorities relied on; and a copy of the opinion delivered by the court in deciding the cause ; and counsel will not be heard orally. RULE xn. When a statute is cited, so much thereof as may be deemed necessary to the decision of the case should be printed at length on the brief. RUIE xin. The general rule will prevail of imposing costs on the decision of motions. Attention is called to section 1355, Code of Civil Procedure. Section 1355. An appeal taken to the Appellate Division of the Supreme Court, as prescribed in this title, must be heard in the department embracing the county in which the judgment or order appealed from is entered; unless an order is made, as prescribed in section 231 of this act, directing that it be heard in another department, or unless appeals pending in one department are transferred for hearing and determination to another, pur- suant to article 6, section 1, of the Constitution. The order made upon the the appeal must be entered in the ofSce of the clerk of the Appellate Division, and a certified copy thereof, with the original case or papers upon which the appeal was heard, filed as provided in section 1353, must be transmitted by the clerk, upon the payment of his fees, to the clerk of the county where the judgment or order appealed from was entered, and upon such certified copy of the order and the case or papers upon which the appeal was heard, the county clerk shall enter the judgment in his office. Remittitur. — The remittitur to be transmitted pursuant to section 1355 of the Code shall contain a copy of the judgment order of this court, and the record which has been filed with the clerk, and shall be sealed with the seal and signed by the clerk of this court. 33 514: Appellate Division — Second Depaetment. [Rule 13 RULES EELATING TO THE ADMISSION OF ATTORNEYS IN THE SEC- OND DEPARTMENT. Notice of the time of application for admission as attorneys by those who have passed the examination prescribed by the rules of the Court of Appeals, will be published in the " Law Journal," at which time applicants must file with the clerk the papers enumerated in Rule 1 of the General Rules of Practice, and ap- pear personally before the Committee on Character to furnish such information as the committee may desire from them. RULES REGULATING THE PROCEDURE UPON APPLICATIONS FOR NATURALIZATION IN THE SUPREME COURT IN THE SECOND DEPARTMENT. All applications of aliens to become citizens of the United States must be heard in Kings county at the Special Term of the Supreme Court for the hearing of motions, and in any other county in the department at any Special Term (whether held at the same time as a Trial Term or not) at which issues are triable. Such hearings shall be had in Kings county on Mon- day of each week during the year, except when Monday is a legal holiday, in which event they may be had on the day following. In the other counties of the department such hearing shall be had on the day of the opening of the court. The days aforesaid are hereby designated as the stated days for such applications. The application, which is required by chapter 927 of the Laws of 189'5 to be filed with the clerk of the court, shall specify the stated day (more than fourteen days thereafter) when such ap- plication will be brought on for hearing and final action. If the applicant fail to appear at the time and place specified in such application, the application will be dismissed without prej- udice to a fresh application. If he appear and for any reason the hearing is not completed upon the stated day aforesaid, the court may complete such hear- ing and take final action upon any day in the same term to which the matter shall be publicly adjourned by the direction of the jus- tice presiding. Appeals from the Municipal Court. All appeals from judgment rendered in the Municipal Court of the city of New York, in districts embraced within the Second Eiule 1] Special Rules of Pkactice. 515 Judicial Department, will be heard by the Appellate Division of the Supreme Court for said department. No Special Calendar of such appeals will hereafter be made up, but they will be placed upon the General Calendar of enumerated cases, according to the date of the appeal, and will be treated in all respects, not herein specially provided for, like other appeals to the Appellate Division from courts other than the Supreme Court. Either party may bring such an appeal on for hearing by a notice of argument, served at least eight days prior to the beginning of the term. Upon the return day of said notice the respondent may, upon the de- fault of his adversary, take a judgment of affirmance or an order dismissing the appeal as the justice of the case may require; and it shall not be necessary to make a special motion for the dis- missal of an appeal, except for failure to file the return. In case of a failure of any justice of the Municipal Court to make return to this court, as required by section 317 of chapter 580, Laws of 1902, it shall be the duty of the appellant forthwith to apply to this court, under the provisions of sections 3055 and 3056, to compel such return. The appeal shall be heard upon the original return or a certified copy thereof, and each party shall file five copies of any brief or points which he may desire to submit at least one day before the argument. RULE RELATING TO THE FORM OF BOND OF APPLICANTS FOR LICENSE TO PRACTICE AS OFFICIAL EXAMINERS OF TITLE. It is ordered that the following special rule, relating to the form of bonds of applicants for license to practice as official Ex- aminers of Title, be and the same is hereby prescribed to take effect forthwith : BUIE I. All bonds executed by individual sureties in accordance with the provisions of section 9 of chapter 444 of the Laws of 190'8, and the rules of the Court of Appeals adopted pursuant thereto, must contain a statement of the place of residence of each surety, giving the street and the number thereof, if such residence is so known and designated, and in addition to the facts required by the Rules of the Court of Appeals to be stated in the affidavit of 516 Appellate Division — Second Department. [Rule 1 justification, each surety must specifically state what property is owned by him, giving a brief description thereof, and also state the value of the same and what, if any, liens or encumbrances there are on such property, with a brief description of the nature and amount of such lien. Kings County, March 4, 1909. Almet F. Jenks, John Woodwaed, William J. Gayijor, Joseph A. Buee, Adelbeet p. Rich, Justices of the Appellate Division of the Supreme Court in the Second Judicial Department. TO ATTORNEYS. A printed copy of the appeal papers shall be filed in the office of the Clerk of the Appellate Division within twenty days after an appeal has been taken, etc. The copy so filed shall be certified by the proper clerk, or be stipulated by the parties to be true copies of the original. (Rule 41, General Rules of Practice.) This shall be done before an appeal shall be placed upon the calendar. (Sec. 1353, Code Civ. Pro.) Attorneys should also notice that Rule 41 requires three copies of the appeal papers to be served within the same time upon the opposite party. !Notes of issue shall be filed in the clerk's ofiice eight days before the commencement of the court at which the cause may be noticed. (Rule 39, General Rules of Practice.) Except that appeals from orders, to be heard as nonenumerated motions, may, after papers have been filed and served in com- pliance with General Rule 41, be added to the nonenumerated' calendar upon filing a note of issue with the clerk, five days before argument, and be noticed for argument for any motion day, upon the usual notice of eight days. Notes of issue shall specify whether the appeal is to be placed upon the nonenumerated or general calendar, and where a ])refer- ence is desired, the note of issue must state the claim for prefer- Bnle 2] Special Eules of Practice. 517 ence as provided in section 793 of the Code, and indicate the class to which it belongs. (Rules 1 and 3, Third Dept.) Attention is also called to Special Eule 6 of this department, requiring notice to the clerk if a party desires the case put upon the day calendar when reached in its order upon the general calendar. Thirteen (13) copies of the appeal papers and points must be delivered to the clerk before the commencement of the argument. Motion days. — The first day of each term, and every Friday thereof, are motion days. Hours of Court. — From 10 o'clock a. m. to 2 o'clock p. m. except Mondays. Mondays, from 2 o'clock p. m. to 6 o'clock p. m. No coui-t on Saturdays. Telephones. — Hudson Eiver, Number 483; Home, Number 483. Third Department. RULE I. Appeals from orders to be heard as nonenumerated motions, may, after papers have been filed and served in compliance with General Eule 41, be noticed for argument for any motion day, and be placed upon the nonenumerated calendar, upon the attor- ney or party intending to move such appeal for argument filing with the clerk a note of issue, specifying the date of the service of the notice of appeal, and stating that the case is to be put upon the nonenumerated calendar. Such appeals, and also motions, will be heard at the opening of the court or upon any succeeding Tuesday during the term. RULE n. If all nonenumerated motions and appeals from orders which are ready for hearing on the first day of the term shall not be heard upon that day, the hearing of them will be continued from day to day until they shall all be disposed of before the general calendar shall be taken up, unless otherwise ordered by the court. 518 Appellate Division — Thikd Depaetment. [Rule 6 RULE in. A party who desires to have a cause heard as a preferred cause must in his note of issue state his claim for preference as pro- vided in section 7&3 of the Code, or if an order giving the cause a preference has been made under that section, the note of issue must be accompanied with a copy of such order. The clerk, in making up the calendar, shall place such preferred causes at the head of the general calendar, indicating that they are preferred, and the class to which they belong. RULE IV. Appeals in criminal cases, brought after making up the calen- dar, or too late to be placed thereon, may be put upon the calendar at any time and brought to a hearing as preferred cases upon a notice of ten days to the adverse party, as provided by section 535 of the Criminal Code. A note of issue, with a statement of the day on which the cause is noticed to be heard, must be filed with the clerk at least five days before such date. The clerk shall place such causes on the calendar for the day for which they are so noticed, or upon which the cause shall be ordered by the court, or stipulated by the parties to be heard. RULE V. The clerk shall prepare at 1 o'clock p. m. of each day for the next day a calendar of such number of causes as the court shall direct, including those undisposed of on the then day calendar, taken from the general calendar in their order thereon, subject to the provisions of Eule VI. Causes not disposed of on any day shall be placed at the head of the calendar for the next day until disposed of. RULE VI. Excepting the first twenty causes on the general calendar, no cause shall be placed on the day calendar, unless written notice is served on the clerk, by the attorney on one side or the other, that such cause is intended to be moved when called in its regular order, or imless it has been reserved for that day, by stipulation filed with the clerk. ISTone of the first twenty causes on the gen- Eule 9] Special Eules of Practice. 519 «ral calendar shall be reserved by stipulation without consent of the court, upon application made on the first day of the term, and any cause not placed on the day calendar in its order on the gen- eral calendar, will be regarded as passed for the term, unless put over, or reserved as above provided. RULE vn. Causes must be argued when reached on the calendar. No ex- change of ca^s will be allowed unless both cases are ready for argument, and counsel intend to argue them at the same term at which the exchange be made, and when causes are exchanged, each shall occupy the proper position of the other in date, on the same and every other subsequent calendar until heard. A pre- ferred cause exchanged for one not preferred, or set down, for a particular day, shall lose its preference, and no case will be called more than once during the same term, ixnless it shall have been reserved or postponed with the consent of the court. RULE vm. If both parties desire to submit, they may do so at any time during the term by delivering to the clerk the cases and points required by General Rule 43, and either party may submit his points when the case is called, if the other party desires to argue orally on his part. RULE IX. The. appellant, in addition to the statement required by Rule 41, shall prefix to his points a brief statement, showing in what court or before what officer or tribunal the action or proceeding was instituted, the relief sought, the defense or ground of oppo- sition thereto, the result in the court or before the officer or tri- bunal in which the action or proceeding was commenced, and how the cause was brought into this court. If any opinion written in the case has been previously reported, he shall also state where it was so reported. If any opinion has been vmtten which has not been reported, the party whose duty it is to furnish the papers shall submit a printed copy of such opinion to the court either in the record or with his brief. 620 Appellate Division — Thied Depabtment. [Rule 14 RULE X. The counsel who argue a case shall indorse on the papers de- livered to the justices their names and places of residence. Every cause shall be deemed to be submitted to any justice, qualified to sit therein, who may be absent at the time of the argu- ment, unless objection to such submission by counsel arguing such cause be then made. RULE XI. notions for reargument will only be heard on notice to the ad- verse party, stating briefly the ground upon which a reargument is asked, and such motion must be submitted on printed briefs stating concisely the points supposed to have been overlooked or misapprehended by the court with proper reference to the par- ticular portion of the case, and the authorities relied upon. RULE XII. If a cause is passed without being reserved, or put over by con- sent of the court, it shall be entered on all subsequent calendars as of the date when passed, and the party placing it on the calen- dar for a sTibsequent term, must state in his note of issue the date when it was passed. If he omits to do so, whereby the cause re^ tains its priority on the calendar, the covtrt, on the application of the adverse party, or on its own motion, may strike the cause from the calendar. RULE xm. Whenever a Trial Term or Special Term of the Supreme Court, in this department, shall be designated to be held or opened on a day which is provided by law to be observed as a legal holiday, such court shall be opened and held on the next succeeding secular day. RULE XIV. At least twenty days before a term of the Appellate Division at which a cause may be noticed for argument the appellant, or relator, shall serve upon the attorney for the respondent three printed copies of his brief upon which he intends to rely upon the argument, with a reference to all the authorities which he Eule 15] Special Eules of Practice. 521 intends to cite to the court. At least eight days before said term, the respondent shall serve upon the attorney for the appellant or relator, three printed copies of his brief with a reference to all the authorities which he intends to cite to the court. If the appeJlaut, or relator, desires to present a brief in reply he may serve the same upon the attorney for the respondent at least three days before said term. 'Service iinder this rule may be made either personally or by mail, but service by mail shall not extend the time within which the answering brief may be served. This rule shall not apply to appeals from orders upon non enumerated motions, nor to causes in which the time to file papers on appeal, shall under General Eule 41, expire withiu twenty days of the commencement of a term. RULE XV. Oandidates for admission to the bar may be siwom in at the opening of the court on any Thursiday of the term, providing the necessary papers therefor shall have been filed with the clerk of the court on or before the Tuesday preceding. Fourth Department. TO ATTORNEYS. A printed copy of the appeal papers shall be filed in the office of the clerk of the Appellate Division within twenty days after an appeal has been taken, etc. The copy so filed shall be certified by the proper clerk, or be stipulated by the parties to be true copies of the original. (Eule 41, General Eules of Practice.) This shall be done before an appeal shall be placed upon the calendar. (iSec. 1353, Code Civ. Pro.) Attorneys should also notice that Eule 41 requires three copies of the appeal papers to be served within the same time upon the opposite party. Notes of issue shall be filed in the clerk's offiice eight days before the commencement of the court at which the cause may be noticed. (Rule 39, General Eule© of Practice.) 522 Appellate Division — Foueth Depabtment. [Rule 2 Except that appeals from orders, to be heard as nonenumerated motions, may, after papers have been filed and served in com- pliance with General Rule 41, be added to the nonenumerated calendar upon filing a note of issue with the elerk five days before argument, and be noticed for argument for any motion day, upon the usual notice of eig'ht days. Notes of isisue shall specify whether the api>eal is to be placed upon the nonenumerated or general calendar, and where a pref- erence is desired, the note of issue must state the claim for preference as provided in section 793 of the Code, and indicate the class to which it belongs. (Rules 1 and 3, Third Dept.) Attention is also called to Special Rule 6, of this department, requiring notice to the clerk if a party desires the case put upon the day calendar when reached in its order upon the general calendar. Thirteen copies of the appeal papers and points must be delivered to the clerk before the commencement of the argument. CALENDAR RULES. RUIE I. Notes of Issue in Appeals from Oiders. No appeal from an order will be heard' unless it is placed on the nonenumerated calendar. The attorney or party intending to move such an appeal for argument shall, at least eight days before the time of the making up of the calendar, file with the clerk a note of issue., specifying the date of the service of the notice of appeal, and stating 'that the case is to be put on the nonenumerated calendar. ISTo case shall be put upon the enumer- ated or nonenumerated calendar until the papers required by General Rule 41 shall have been filed with the clerk. RULE n. Notes of Issue in Preferred Cases. A party who desires to have a ease heard as a preferred case, must, in his note of issue, state his claim for preference, as pro- vided in section 793 of the Code; or if an order giving the case a preference has been made under that section, the note of issue must be accompanied with a copy of such order. The clerk in making up the calendar shall place such preferred cases at the Kule 6] Special Eules of Practice. 523 head of the general calendar, indicating that they are preferred, and the class to which they belong. UTILE in. New Calendar, When to Be Made. Passed Cases. When a netw calendar is ordered by the court, the clerk shall place thereon all cases which remain undisposed of on the former calendar, and all other cases in which notes of issue have been filed in his office. If a ease shall have been passed, it shall go upon the calendar as of the time when it was passed, and the fact that it was passed shall be stated upon the calendar. RULE IV. Criminal Cases May be put upon the Calendar at any Time. Appeals in criminal cases, brought after making up the cal- endar, or too late to he placel upon the calendar, may be put upon the calendar at any time, and brought on for hearing as pre- ferred cases, upon a notice of ten days to the adverse party, as provided in section 535 of the Criminal 'Code. A note of issue must be filed with the clerk at least five days before the day on which the case is to be heard, and he shall put the same on the calendar for the day on which it shall be noticed, or upon which it shall be ordered by the court, or stipulated by the parties to be heard. RULE V. Day Calendar to be Made by Clerk. The clerk shall prepare at 3 o'clock, p. m., of each day a day calendar for the next day, to consist of ten cases or such other number as the court shall direct, including those undisposed of on the then day calendar. They shall be taken from the general calendar in their order thereon, subject to the provisions of Rule VI. Cases not disposed of on any day shall be placed at the head of the calendar for the next day, until disposed of. RULE VI. Notice to Clerk no Longer Necessary, etc. It shall not be necessary to notice cases for the day calendar. Any case on the general calendar may, by stipulation of the par- ties, filed with the clerk at any time before the case is placed upon 524 Appellate Division — Foueth Department. [Rule 8 the day calendar, be reserved for a day certain, except that no stipulation shall be made or filed reserving any of the first fifty cases on the general calendar beyond the first week. Cases so re- served for a day certain shall not be placed upon the day calendar for any day prior to that to which they have been so reserved. No case shall be put upon the day calendar unless the papers and points have been delivered to and filed with the clerk. Cases which cannot be placed upon the day calendar in their regular order or at the time to which they have been reserved by reason of nonfiling of the papers and points, will be regarded as passed for the term. RULE vn. Clerk to Telegraph Day Calendar. The clerk shall, on each day during the term, immediately on making up the day calendar, telegraph the numbers of the cases upon it to the county clerks at Buffalo, Syracuse, Utica, Oswego, Lockport, Auburn, and Watertown, and the county clerks receiv- ing said telegrams are directed to post or bulletin the same in such manner as shall be most convenient for attorneys and others desiring to see the same, and also to procure the publication of such telegrams in the newspapers of their respective cities. RULE VIII. , Reservations and Submissions. Cases will not be received upon submission until reached in the regular call of the calendar. No reservation will be made of any of the first eight cases upon the general calendar, unless on account of sickness, or an engagement of counsel elsewhere, in the actual trial or argument of another case in a court of record, commenced before the term of this court, or other inevitable neces- sity to be shown by affidavit. Other cases may be reserved upon reasonable cause shown; or by stipulation of parties, filed with the clerk, but no case shall be so reserved by stipulation after the same has been placed upon the day calendar. Cases reserved for a day certain by stipulation, when in order to be called, have priority among each other according to their number on the calendar, and shall follow next in order the undis- posed of cases of the calendar for the day previous. Default may Kuie 9] Special Rules of Practice. 525 be taken in them, and they will, if passed, be put upon future calendars as if passed in the regular call. Every cause shall be deemed to be submitted to such justice as may be absent from the court at the time of the argument unless objection to such submission by counsel arguing the cause be then made. EULE IX. Papers to be Filed with the Clerk and Exchange of Briefs. Within fifteen days after the service of the printed papers re- quired to be served by General Rule 41 in enumerated motions, the party whose duty it is to furnish those papers shall file with the clerk sixteen printed copies of the papers and sixteen printed copies of his brief and the points upon which he intends to rely upon the argument, with a reference to all the authorities which he intends to cite to the court ; and shall, at the same time, serve on the attorney or counsel for the other party three copies thereof. Within seven days thereafter the other party shall file with the clerk sixteen printed copies of his brief and points, with a refer- ence to all his authorities, and serve on the attorney or counsel for the moving party, three printed copies thereof. If either party shall fail to serve and file his brief and points, as herein required, he shall not be heard upon the argument, and judgment may be entered against him, as upon default, on application to the court on any motion day upon three days' notice. If the moving party desires to serve an answering brief, he shall file with the clerk sixteen printed copies thereof, and serve upen his opponent three printed copies, within five days after the receipt of his opponent's brief. He shall not include in his answering brief, any matter which is not in the nature of an anewer to the brief to which it purports to reply. No supple- mental briefs will be allowed unless requested by the court. This rule shall not apply to appeals from nonenumerated motions. It shall apply to all cases which shall be put upon the day cal- endar upon and after the first day of March, 1896. Upon the argument of all cases before that time, the moving party shall furnish to the clerk sixteen copies of the case, and each party shall furnish to the clerk sixteen copies of his brief. The clerk shall distribute the cases and briefs as prescribed in General Rule 43, and he shall, in addition, deliver one copy of each to the Librarian 526 Appellate Division — Foueth Depaetment. [Rule 12 of the Law Library in Buffalo, Rochester and Syracuse, to be bound and indexed for reference. RULE X. Information, Attorneys shall Prefix in Brief. The moving party, in addition to the statement required in General Rule 41, shall prefix to his points a brief statement, showing when and in what court or before what officer or tribunal the action or proceeding was instituted, the relief sought, the de- fense or grounds of opposition thereto, the result in the court or before the officer or tribunal in which the action or proceeding was commenced, the proceedings subsequent to the first decision, and how the case was brought into this court. If any opinion written in the case has been previously reported, he shall also state where it was so reported. If any opinion has been written which has not been reported, the party whose duty it is to fur- nish the papers shall submit a printed copy of such opinion to the court, either in the record or with his brief. RULE XI. Indorsement on Brief. The counsel who argues the case shall indorse on his brief, de- livered to the judges, his name and place of residence. RULE XII. Exchange of Cases. No exchange of cases will be allowed unless both cases are ready for argument, and counsel intend to argue them at the same term at which the exchange is made; and when cases are ex- changed, each shall occupy the proper position of the other in date, on the same and every subsequent calendar, until heard. A preferred case exchanged for one not preferred, or set down for a particular day, shall lose its preference, and no case will be called more than once during the same term, unless it shall have been reserved or postponed Mdth the consent of the court. Kule 14] Special Kules of Practice. 527! RULE xin. Hearing of Nonenumerated Motions and Appeals from Orders. Argument of nonenumerated motions and appeals from orders ■will be heard only upon the first day or the third Friday of a term. ITo stipulation reserving the argument of such appeals to the third Friday will be honored unless such stipulation be filed with the clerk not later than Friday preceding the opening day of the term. If all nonenumerated motions and appeals from orders which are ready for hearing on the first day of the term or on the third Friday shall not be heard upon such day, the hearing will be continued from day to day until they shall all be disposed of, be- fore the general calendar shall be taken up, unless otherwise ordered by the court. Original motions in this court may be noticed for the first day of the term, or for the Friday in any subsequent week of the term. RULE XIV. Motions for Reargument. Motions for reargument will be heard only on notice to the adverse party, stating briefly the ground upon which a reargu- ment is asked, and such motions must be submitted upon printed briefs, stating concisely the points supposed to have been over- looked or misapprehended by the court, with proper reference to the particular portion of the case and the authorities relied on; and a copy of the opinion delivered by the court in deciding the case; and counsel will not be heard orally. RULE XV. Remittitur. The remittitur to be transmitted pursuant to section 1355 of the Code shall contain a copy of the judgment or order of this court, and the record which has been filed with the clerk, and shall be sealed with the seal and signed by the clerk of this court. RULE XVI. OfScial Examiners of Title. An official examiner of title, before he is licensed and admitted to practice as such, must file the bond required by Eule 3 of the 528 Appellate Division ■ — Foubth Depaetment. [Rule 3 Court of Appeals, relating to applications to practice as offiscial examiners of title, approved by the presiding justice of the Ap- pellate Division of the Supreme Court in this department. In case of the death or insolvency, of either of the sureties, an official examiner of title must forthwith file a new bond, with new sure- ties, fully complying with said rule. Each applicant for a license as an official examiner of title must also produce such evidence of character and as to his standing in regard to financial transactions as the Appellate Division of this department may require. (Adopted May 27, 1909.) New York Surrogate's Riiles. RULE I. A special motion calendar will be called on each Tuesday and Friday at 10.30 o'clock, a. m., except during the month of August. No calendar will be called during that month. RULE n. To entitle a motion or proceeding to be entered upon the motion calendar, proof of service of all orders, citations, summons and other papers on which the motion or application shall be made, must be furnished to the clerk of this court at or before 1 o'clock on the day preceding the motion day. No motion shall be adjourned without showing to the satisfaction of the surrogate legal grounds therefor, except upon the return day thereof, when it may be adjourned for a week on filing with the olerk the written consent of the parties. RULE in. 'No mandate issued out of this court shall be deemed duly served unless copies of the petition or other paper or papers upon which it shall be issued, and upon which relief is sought, shall be served with it, except the following: 1. Citation to attend probate. 2. Citation to revoke probate. Eule 4] Special Rules of Peactice. 529 3. Citation on application for administration. 4. Citation for intermediate account. 5. Citation to attend judicial settlement of account. 6. Citation to temporary administrator to account. 1. Citation to principal in a bond to give new sureties in place of sureties who apply to be released. 8. Order to temporary administrator to make deposit. 9. Order to executor to appear and qualify. 10. Order requiring the executor or administrator to file in- ventory. 11. Why an account should not be made on surrogate's motion. RULE IV. A party seeking to contest the probate of a last will and testa- ment must file a written appearance with the clerk of this court, together with a written and verified answer, containing a concise statement of the grounds of his objection to such probate, and any facts he may allege tending to establish a want of jurisdiction of the court to hear such probate. In case such jurisdiction shall be denied or the right of any objecting party to appear and contest shall be questioned, the court will first hear and pass upon the question of jurisdiction, or the status of the contestant, unless, for the convenience of the parties or the court, it shall be ordered otherwise. When a contestant files with the surrogate the notice provided for by section 2618 of the Code of Civil Procedure, re- quiring the examination of all the subscribing witnesses to a will, or any other material witness, he must present with such notice an affidavit showing the materiality of the testimony of the wit- nesses or witness sought to be examined, and an order requiring the production by the proponent of such witnesses or witness. A copy of such order, if the same shall be signed, must be immedi- ately served upon the proponent or his attorney. In all cases of contests in probate proceedings, the proponents shall, within five days after objections to the probate are filed, present a verified petition for and procure and enter an order directing notice of the time and place of hearing of such objec- tions to be given, and prescribing the manner of giving such notice, to all persons in being who would take any interest in any 34 530 New Yoek Sueeogate's Oouet. [Rule 6 property under the provisions of the will, and to the executor or executors, trustee or trustees named therein, if any, who have not appeared in the proceeding, as required by section 2617 of the Code, and such petition shall contain the names and addresses of such parties, and state whether any, and which of them, are infants or of unsound mind. In case the proponents shall not present such petition and enter such order within the time afore- said, such petition may be presented and order entered by or on behalf of any party or parties interested in the estate. Proofs of service of such notices must be filed with the probate clerk at least four days before the date named therein for such hearing. In probate proceedings, when all parties in interest have waived the service of citation, notice of at least two days must be given to the probate clerk before the testimony of the subscribing wit- nesses will be taken. The will should be filed with petition for probate, unless upon good cause shown by affidavit the surrogate dispenses therewith, in which case it must be filed at least two days before the return day of the citation. In all cases a copy of the will must be filed with the petition. RULE V. Wherever a party shall put in issue on probate the validity, construction, or the effect of any disposition of personal property under section 262'4: of the Code, if it shall appear that all persons interested in such construction are not before the Court, the deter- mination of such question shall be suspended until such persons shall be made parties; and the executor named in the will shall not be held to represent the legatees therein for the purpose of such construction. RULE VI. Whenever any person shall appear in support of the will pro- pounded under section 2617 of the Code, such person shall not thereby become entitled to recover any costs on the probate of said will unless it shall appear to the satisfaction of the court that the interest of such person was not sufficiently represented and prose- cuted by the executor named in the will and his counsel. Eule 9] Special Kules of Peactice. 531 RULE vn. On an accounting by an executor, administrator, guardian or trustee, which may be contested, any party interested, or a creditor desiring to contest the account, shall file specific objections thereto in writing, and serve a copy thereof upon the accounting party, or upon his attorney in case he shall have appeared by attorney, within eight days after the filing of the account in the office of the clerk of the court, where the accounting is a compulsory one, and within eight days after the return of the citation, where the accounting is a voluntary one, or within such further or other time in either case as shall be allowed by the surrogate; and the contest of such account shall be confined to the items or matter so objected to. If it shall appear to the satisfaction of the court, by affidavit or petition, that an examination of the accounting party will be necessary to enable the contesting party to interpose his objections, such examination may be ordered by the court for that purpose. KULE vm. When a referee's report shall be filed, together with the testi- mony taken before him, said report shall be confirmed as of course, unless exceptions thereto shall be filed by any party inter- ested in the accounting or proceeding within eight days after a written notice of such filing and a copy of such report shall have been served upon the opposing party ; and in case exceptions shall be so filed, any party may bring on the hearing of said exceptions on eight days' notice on any stated motion day of said surrogate's court. RTTLE IX. All orders and decrees to be entered in litigated motions, unless settled by consent, must be noticed for settlement, and a copy of the proposed order served at least one day before the same shall be presented for settlement at the surrogate's chambers, and all decrees to be entered in contested probate or accounting proceed- ings shall be settled at chambers, on two days' notice, and the service of a copy of the proposed decree ; and no such order or decree will be signed in the absence of the opposing attorney, unless proof or admission of such service shall be presented on. such settlement. 533 New Yoek Suekogate's Couet. [Eule 10 KULE X. ISTo special guardian to represent the interests of an infant in any proceeding in said surrogate's court will be appointed on the nomination of a proponent or the accounting party, or his attor- ney, or upon the application of a person having an interest adverse to that of the infant. To authorize the appointment of a person as a special guardian on the application of an infant or otherwise in a proceeding in this court, or to entitle a general guardian of such infant to appear for him in such proceeding, it must appear that such person or such general guardian, is competent to protect the rights of the infant, and that he has no interest adverse to that of the infant, and is not connected in business with the attorney or counsel of or any party to the proceeding. Where the appli- cation for the appointment of a special guardian is made by another than the infant, or where the general guardian appears in behalf of the infant, it must appear that such applicant or ..general guardian has no interest adverse to that of the infant. ISTo party to a proceeding will be appointed special guardian of ;any other party thereto. If such applicant or general guardian is entitled to share in the distribution of the estate or fund in which the infant is interested, the nature of the interest of such applicant or general guardian must be disclosed. The applica- tion for the appointment of a special guardian as well as the appearance filed by a general guardian of a minor must, in every instance, disclose the name and residence and relationship to the infant of the person with whom the infant is residing, whether or uot he has a parent living, and if a parent is living, whether or not such parent has knowledge of and approves such application or appearance; and such knowledge and approval must be shown by the affidavit of such parent. If the infant has no parent living, like knowledge and approval of such application or appearance by the person with whom the infant resides must be shown in like manner. Where such application is made by an infant over the age of 14 years, his petition must show and be accompanied by the aflidavit of the parent (in case the latter has an interest adverse to that of the infant), showing, in addition to such knowledge aforesaid, that such parent has not influenced the infant in the choice of the guardian. Eule 15] Special Kules of Peactice. 533 RULE XI. In any proceeding for a judicial settlement of the account, -wherein a special guardian shall be appointed or a general guardian shall appear to protect the interests of an infant party to such accounting, no decree will be entered as upon default against such infant, but such decree shall be so entered only on the written report of the guardian appearing for such infant that he has carefully examined the account and finds it correct, and upon two days' notice to the guardian of the settlement thereof. RULE XII. Whenever an infant interested in any proceeding in said sur- rogate's court has a general guardian no decree will be entered without appointing a special guardian to represent said infant's interest therein, unless such general guardian shall file his appear- ance in writing and his affidavit of no adverse interest, as required by Eule 10, with the clerk of said surrogate's court. RULE xin. "No costs will be allowed to the petitioner who takes proceedings to compel the filing of an inventory by an executor or adminis- trator, unless such executor or administrator shall have unreason- ably delayed to make and file such inventory after having been duly requested to do so by or in behalf of the petitioner. RULE XIV. All petitions and answers in this court, except as otherwise expressly prescribed by statute, shall be in writing and contain a plain and concise statement of the facts constituting the claim, objection or defense, and a demand of the decree, order or other relief to which the party supposes himself to be entitled, which petition and answer are required to be verified. RULE XV. The deposit of securities for the payment of money belonging to an estate or fund, as provided in section 2595 of the Code of 'Civil Procedure, for the purpose of reducing the bond of an. 634 New Yoek Sueeogate's Couet. [Rule 17 executor, administrator or other trustee, shall be made under the order of the suiTogate in the United .States Trust Company, of the 'New York Life Insurance and Trust Company, Farmers' Loan and Trust Company, the Union Trust Company, the Mer- cantile Trust Company, the Central Trust Company of New York, State Trust Company and Knickerbocker Trust 'Company, subject to the order of the trustee, to be countersigned by the surrogate, or the special order of the surrogate, and not otherwise. RULE XVI. The respondent on any appeal from a decree or order of this court may, within ten days after the filing of the undertaking required on such appeal, serve upon the attorney for the appellant a written notice that he excepts to the suiEciency of the sureties therein; whereupon and within ten days thereafter such sureties, or other sureties in a new undertaking to the same effect, must justify before the surrogate or the chief clerk on five days' notice of such justification, to be served upon the respondent's attorney, by each surety appearing in person before said surrogate or chief clerk and submitting to an examination, on oath, on the part of the appellant, touching his sufficiency. If such sureties shall be found sufficient, said surrogate or chief clerk will indorse an allowance thereof upon the undertaking or a copy thereof, and a notice of such allowance shall be served upon the attorney for the exceptant; and the effect of any failure to so justify and procure such allowance shall be to avoid the undertaking. RULE xvn. Wherever a bond with sureties shall be executed by an executor, administrator, guardian, or other trustee, any person interested in the estate or in behalf of such guardian may apply to the surro- gate for an order requiring the sureties in said bond to appear before him, or his chief clerk, and submit to an examination under "oath as to their sufficiency as such sureties. If it shall appear to the satisfaction of the surrogate that such examination is neces- sary, he will make an order, prescribing the time and place where such examination shall take place, a copy of which order shall be served upon such executor, administrator, guardian or trustee, at least five days before the time fixed for such examination. If on Hule 20] Special Rules of Peactice. 535 such examination tlie surrogate shall be satisified of the sufficiency ■of such surety he "will indorse his approval upon the bond, or a copy thereof; and in case such surety on such examination shall not, in the opinion of the surrogate, be sufficient, the surrogate •will make an order requiring the substitution of new sureties, Tvithin five days after the service of a copy of said order upon the executor, administrator, guardian or other trustee, or his attor- ney, if he shall have appeared by attorney on such examination. RULE xvm. ITo document, petition, affidavit or paper .will be considered on the determination of any motion by the surrogate, except such as shall bear the regular file mark of the surrogate, his chief clerk, or the clerk to the Surrogate's Court, except such as shall form part of the testimony ot documentary evidence, or ex'hibits before a referee, and then they must bear the mark as an exhibit of -the Teferee. 'So paper will be received for consideration iby the surrogate, or for filing in his office, unless it is of the weight prescribed ^by Eule 19 of the General Rules of Practice, and con- forms in all other respects, as far as practicable, to the require- ments of said rule. And no paper will be received by the clerk of the court after argument or submission of a matter eoibsequent to the day fixed by the surrogate for the receipt of the same. RULE XIX. A proposed order or decree must not be attached to any other paper. Upon the back of every such order or decree, and upon every set or collection of papers .attached together, and upon all single papers separately presented, there must conspicuously appear the name of the decedent or of the infant to whose estate the proceeding relates, the nature of each order, decree, or other paper, or set of papers, and the name and address of the attorney presenting the same. RULE XX. Ko record or paper on file in this court will be intrusted to the custody of the attorneys or parties, except for the purpose of proper examination, in the office where they are deposited; and if any such document or paper shall be needed before any referee 536 New Yoek Sueeoqate's Couet. [Rule 22 appointed by this court, tlie same shall be intrusted to a clerk or messenger of this court and delivered to the referee, "Who shall execute a receipt therefor, and for its redelivery. RULE XXI. The surrogate, on the written certificate of the person appointed under section 2844 of the Code, to examine the inventory and accounts of guardians filed in said surrogate's office, that a gen- eral guardian has omitted to file such inventory or account, or the affidavit required by section '2843, or that the interesit of the ward requires that the guardian should render a more satisfac- tory inventory or account, will make an order requiring the guardian to supply the deficiency. Whenever it shall appear by the certificate of said person that the guardian has failed to comply with such order within three months after its due service upon him, or that there is reason to believe that sufficient cause exists for the guardian's removal, the surrogate will appoint a special guardian of the ward for the purpose of filing a petition in his behalf and prosecuting the necessary proceedings for the removal of such guardian. RTJLE XXn. Wbenever a party to a decree shall deem himself entitled to costs, the same will be considered and determined by the surrogate on two days' notice of adjustment, to be served upon the opposing party, with the items of costs and disbursements to which 'the party may deem himself entitled at the time of the settlement of the decree, which disbursements shall be duly verified, both as to their amount and necessity, the disbm-sements for referee and stenographer's fees being sustained by their affidavits or detailed proof ; and at the same time, and on like notice, the surrogate witt pass upon any additional allowance to be made to an executor, administrator, guardian or testamentary trustee, upon a judicial settlement of his account; which notice of adjustment and allow- ance shall be accompanied by an affidavit setting forth the number of days necessarily occupied in the hearing or trial, the number necessarily occupied in preparing the account for settlement, and in the preparation for the trial, the time occupied on each day in the rendition of the services, and their nature and extent in detail. Rule 25] Special Eules of Peacticb. 537 In case sucli trial shall have heen had before a referee, the time necessarily occupied in such trial before him may be shown by a certificate of such referee. The affidavit as to disibursements, time engaged in trial, and in preparing the account and for trial, may be controverted by affidavit. RULE xxni. All motions for reargument must be submitted on papers, showing clearly that some question decisive of the case, and which was presented by counsel upon the argument, has been overlooked by the court ; or that the decision is inconsistent with some statute, or with a controlling decision to which, through the neglect or inadvertence of counsel, the attention of the court was not drawn- RULE XXIV. 1. Every proposed decree must be accompanied by a copy of the will in the case of an accounting of an executor or trustee, and in every case by an affidavit of regularity, setting forth the necessary jurisdictional facts. A copy of the form of the affidavit required will be furnished by the clerk of the court. 2. Every consent, notice of settlement or admission of service, must be upon a separate sheet of paper annexed to the order or decree to which it relates, and not upon the body or cover thereof. 3. When a petition for a voluntary accoimting is presented, the account to which it relates must be filed therewith. 4. Upon an accounting, wherein there is no general or special guardian, no decree will be entered until the account has been audited by a referee appointed for that purpose, except upon the consent of all the parties. RULE XXV. 1. Upon the filing of the appraiser's report in a transfer tax proceeding the surrogate will immediately enter the order de- termining the value of the property and the amount of tax. The matter will not appear on the calendar at this stage, nor will the court then consider objections to the report. 2. A party having objections to the report, or order entered thereupon, may, within sixty days, file a notice of appeal. Said notice to be served upon all parties appearing before the ap- 538 Kings County — Supreme Couet. [Rule 5 praiser, and proof of service to be filed with the clerk, with the notice of appeal. Thereupon the proceeding will be placed upon the calendar for the next regular motion day. This notice must specify the grounds of objection, 3. A special guardian will be appointed to protect the interests of infants upon the return of the appraiser's notice, if it appears that their rights are involved and they are not otherwise ade- quately represented. KINGS COUNTY — SUPREME COURT. Calendar Rules of Trial Term. EULE I. Any cause may be set down for a day by stipulation filed with the calendar clerk before it appears on the day calendar, except that it may not be advanced out of its order in that way. Causes marked " off " on the call of the day calendar may be set down for a day of any subsequent term only, by a stipulation or a five days' notice filed with the said clerk. RULE n. Causes will not be set down for days upon the call of the day calendar. The answer must be " ready " or " off." RUIE in. The first day a cause is on the day calendar it wiU be held for that day if marked " ready." RULE IV. The court will take notice of engagements of counsel in Kings county upon an oral statement. RULE V. The court will pay no regard to engagements of counsel else- where unless a signed written statement thereof (which need not to be sworn to) be submitted, giving the title of the cause in which the engagement is, in what court and part and before what judge such cause is on trial, and when the trial commenced and Eule 10] Special Kules of Peactice. 539 Low long it is likely to continue. Engagements in an appellate court will not be regarded unless stated in the same way and with equal precision. RTTIE VI. All other excuses or motions for delay, or for holding or post- poning causes, must be presented by affidavit on the call of the day calendar in order to be considered for any purpose, includ- ing a motion in the Special Term for motions to open a default. RULE vn. The court will not hear oral statements or arguments in respect of such engagements, excuses or motions, and will pass upon such written statements or affidavits thereof by indorsements thereon after the call of the day calendar, and file the same with, the clerk. RULE vin. IN'ot more than two causes will be held ready on the day calen- dar for one counsel in addition to the one he may be engaged in trying in Kings county, or if he be engaged out of Kings county ; and in all cases the counsel who is to try the cause must be designated on the call of the day calendar if required by the court. RULE IX. If a cause answered " Eeady," by the plaintiff be afterwards answered " off " by the plaintiff, or made unduly obstructive by the unreadiness of the plaintiff, it may be stricken from or sent to the foot of the general calendar. RULE X. Any action on contract or for conversion or to recover a chattel, which is on the calendar (having a number) may be advanced to any day calendar by any party by filing, at least thirty days prior thereto, with the calendar clerk, an affidavit showing that some necessary party to the action was at the time of its commencement a resident of Kings county, and if the plaintiff is an assignee of the cause of action, that the assignor or some necessary defendant was then such resident, together with proof of notice of such ad- vancement to all parties who have appeared, or in lieu thereof the 540 Kings County — Supeeme CotrET. [Eule 4 consent of all such parties. Causes so advanced must be tried when reached, or the preference and the right thereto under this rule is lost unless otherwise ordered by the court. Equity Calendar. The equity calendar rules are identical with those of the Trial Term, with the exception of Eule 10, which reads as follows : RULE 10. When time is given for the submission of briefs and papers, they must be handed to the clerk and not sent to the justice. KINGS COUNTY — SUPREME COURT. Equity Calendar. RULE L Any cause may be set down for a day by a stipulation filed with the calendar clerk before it appears on the day calendar, except that it may not be advanced out of its order in that way. Causes marked " off " on the call of the day calendar may be set down for a day of any subsequent term only, by a stipulation or a five days' notice filed with the said clerk. RULE n. Causes will not be set down for days upon the call of the day calendar. The answer must be " ready " or " off." RULE m. The first day a cause is on the day calendar it will be held for that day if marked " ready." RULE IV. The court will take notice of engagements of counsel in Kings county upon an oral statement. Eule 10] Special Kules op Peactioe. 541 KULE V. The court will pay no regard to engagements of counsel else- -where unless a signed written statement thereof (which need not to be sworn to) be submitted, giving the title of the cause in which the engagement is, in what court and part and before what judge such cause is on trial, and when the trial commenced and how long it is likely to continue. Engagements in an appellate court will not be regarded unless stated in the same way and with equal precision. EULE VI. All other excuses or motions for delay, or for holding or post- poning causes, must be presented by affidavit on the call of the day calendar in order to be considered for any purpose, includ- ing a motion in the special term for motions to open a default. KUiE vn. The court will not hear oral statements or arguments in re- spect of such engagements, excuses or motions, and will pass upon such written statements or affidavits thereof by indorsements thereon after the call of the day calendar, and file the same with the clerk. RULE vni. ISTot more than two causes will be held ready on the day cal- endar for one counsel in addition to the one he may be engaged in trying in Kings county, or if he be engaged out of Kings county; and in all cases the counsel who is to try the cause must be designated on the call of the day calendar if required by the court. RULE IX. If a cause answered '' Ready," by the plaintiff be afterward answered " off " by the plaintiff, or made unduly obstructive by the unreadiness of the plaintiff, it may be stricken from or sent to the foot of the general calendar. RULE X. When time is given for the submission of briefs and papers, they must be handed to the clerk and not sent to the justice. 542 Kings County — CotrNTT Cottet. SPECIAL UNOFFICIAL RULE OF SPECIAL TERM FOR MOTIONS. Undefended divorce cases shall be tried in the special term for motions of Kings county on the first and third Fridays of each term. KINGS COUNTY— COUNTY COURT. Any action upon a contract not occupying more than one hour to try, can upon motion be set down for a day for trial. If not tried in one hour will be sent to the foot of the calendar. Cases will be placed upon the day calendar in their numerical order ; ten causes will constitute the ready calendar and ten the reserved calendar. When a cause is reached on a day calendar, it must be tried or go to the foot of the general calendar unless a good and valid reason can be given to adjourn the same. When a cause appears upon the reserve calendar, if marked " ready," wiU be passed for the day, if marked " off " can upon notice or stipulation be restored to the foot of the reserved cal- endar for a day of a subsequent term. Causes entitled to a preference, if application is granted, may be set down for a day certain for trial after causes marked " ready " the preceding day are disposed of; it not ready to pro- ceed with the trial when reached shall be stricken from the day calendar retaining its position on the general calendar as if no preference had been ordered. Contested foreclosures and actions triable by the court without a jury can be set down for trial any Friday of term noticed for, or any Friday hereafter, by filing with the calendar clerk a five days' notice or stipulation to that effect. Causes heretofore marked off call calendars may be restored to reserved calendar by filing a five days' stipulation with the clerk. Motion and ex parte applications may be made in Part II to the judge presiding on any day during the term. Appeals from Magistrate's Courts will be placed on the cal- endar of this court for the term next succeeding the allowance thereof, in the order of their allowance. A day calendar of such causes will be made up for the second Friday of each term. Rule 6] Special Rules of Peactice. 543 Where bail is not allowed a preference will be given. Day calendar of appeals will be published. Chambers will be held on Saturday of each week by the judges alternately. Rules of Practice of the Surrog-ate's Court of Kings County. RULE I. The Surrogate's Court is open for the' transaction of business from 9 a. m. to 4: p. m., except Saturdays when the office closes at noon; from July first to August thirty-first, inclusive, from 9 a. m. to 2 p. m. Monday, Tuesday, Wednesday and Thursday are calendar days ; the calendar will be called on those days at 10 o'clock a. m. ETJLE n. A party seeking to contest the probate of a will must file a notice of appearance with the clerk of the court, together with a verified answer. RULE III. In all probate proceedings a copy of a will must be filed with the petition; and on or before the return day of the citation the original will must be filed. The proofs of service should be re- turned before the office closes on the day preceding the return of the citation. Should no one appear on the call of the calendar the proceeding will be at once adjourned to the next calendar day. RULE IV. All orders to be entered on litigated motions, and all decrees in contested probate proceedings must be settled on two days' notice to all parties appearing. RULE V. All exemplified copies of foreign wills must be accompanied by a petition and order for recording the same. RULE VI. Principals and sureties In administration and guardianship appointments must appear and qualify at the same time before the 644 Kings County — Sueeooate's CorET. [Rule 10 administration clerk. No bond for a sum less tHan fifty dollars will be approved, and no bond by a surety company wbere the penalty exceeds $5,000 will be approved unless a certificate of the company is attached to said bond showing joint control of the fund. RULE vn. No allowance will be made for infants for support or education under section 2846, C. C. P., unless the petition shows that an annual accounting has been properly filed or good cause is therein shown why it has not been filed. The petition must show also the terms of any previous order in the same estate, or, if none has been made, that fact must be stated. Except in exceptional cases, an allowance will be made for the period of one year only, and the order must so provide. Where the infant is over four- teen years of age, he must join in the petition; and when applica- tion is made by any person other than the guardian of the prop- erty it must be made on at least two days' notice to such guardian. RULE VIII. ISTo letters of administration will be issued while another appli- cation for letters on the same estate is pending. RULE IX. All petitions, decrees, orders and other papers must be indorsed with the title of the proceeding, distinctly indicating the nature of the application, the title of estate and the name and post-office address of attorney. A proposed order should not be attached to any other paper. RULE X. In the absence of a petition by an infant over fourteen years of age for the appointment of a special guardian in any proceed- ing, the surrogate will appoint a special guardian upon his own motion. No special guardian to represent the interest of an in- fant in any proceeding will be appointed on the nomination of a proponent or the accounting party or his attorney, or upon the ap- plication of a person having- an interest adverse to that of the infant. To authorize the appointment of a person as a special guardian on the application of an infant or otherwise in a pro- Eule 15] Special Eules of Peactice. 545 -ceeding in this court, or to entitle a general guardian of such infant to appear for him in such proceeding, it must appear that such person, or such general guardian, is competent to protect the right of the infant, and that he has no interest adverse to that of the infant, and is not connected in business with the attorney or counsel of any party to the proceeding. EUIE XI. Before the making of a decree under chapter 18, title 5, Code of Civil Procedure, an affidavit of regularity must be filed by the attorney for the petitioner. RULE XII. When a petition for a voluntary accounting is presented, the account and vouchers to which it relates must be filed therewith. RULE xin. Special guardians in accounting proceedings must file their reports within eight days from the time of their appointment, ex- cept where objections are filed, an adjournment had, or their time to file report is extended by the surrogate. The report or an accompanying affidavit niust state in detail the work done and the number of days spent in its performance. RULE XIV. In all accounting proceedings where a notice of appearance and demand are filed, or special guardians are appointed, two days' notice of settlement of decree must be given unless all parties who iave appeared consent to the entry of the decree. RULE XV. On an accounting by an executor, administrator, guardian, or trustee, which may be contested, any person interested, or a credi- tor desiring to contest the account, must file specific objections thereto in writing. Objections to items of receipts or disburse- ments must be verified. All vouchers and other papers must be so arranged as to be readily placed in the document file boxes in use in the office. 35 546 Kings 'County — Subbogate's Cotjet. [Eule 21 RULE XVI. Referee's reports on contested accounts must conform to section 2545 of the Code of Civil Procedure. RTJiE xvn. On an accounting by an executor, testamentary trustee or ad- ministrator with the will annexed, a copy of the will must accom- pany the proposed decree. RULE xvin. In contested matters, making partial proof and then adjourning to take further proof will not be permitted, but the hearing must proceed continuously until testimony is closed. RULE XIX. 'So allowance will be made to executors or administrators on the judicial settlement of their accounts unless the bill of costs contains a detailed statement of the days employed by them in connection with the account, showing the time occupied on each day in the rendition of the services, and their nature and extent in detail. RULE XX. No record or paper on file in this court will be intrusted to the custody of the attorneys or parties, except for the purpose of proper examination, in the office where they are deposited; and if any such document or paper shall be needed before any referee appointed by this court, the same shall be intrusted to a clerk or messenger of this court and delivered to the referee, who shall execute a receipt therefor, and for its redelivery. RULE XXI. In all cases where parties consent that the surrogate may hear and determine disputed claims against the estates of decedents upon the judicial settlement of the accounts of executors or ad- ministrators, as provided by section 1822 of the Code of Civil Procedure, the attention of the court must be directed to this fact on filing the petition for accounting in order that the matter may be placed upon the appropriate cale: dar. Kule 1] Special Eules of Pkactice. 547 RuiE xxn. In cases where parties to a contested matter fail to submit findings and decree in conformity with a decision duly made and rendered within thirty days after the making of such decision the surrogate will not award costs to any party. RUIE xxin. (Adopted September g, igog.) Upon application for leave to compromise, the petitioner's at- torney, if any, shall state whether or not he has become con- cerned in the application or its subject matter at the instance of the party with whom the compromise is proposed and whether or not he has received or is to receive any compensation from such party. Rules of the City Court of the City of New York. (Adopted in Convention, Match 21, igoy. In Effect, April i, igoy.) RTJLE I. Trial Terms. Each Trial Term shall begin on the first Monday of the month for which it is assigned, and may be continued until and including the Friday preceding the first Monday of the ensuing month. No Trial Term shall be held during the months of July, August and September, except as hereinafter prescribed. The justice assigned to the iSpecial Term during the months of July, August and September, with a jury, or without where none is required by the parties, may try " marine easesi," or any case in which the defendant may, by order of a justice of this court, 'be actually confined in jail and unable to furnish bail, and when the circum- stances of the case are, in the judgment of said justice, such as to demand a speedy trial in furtherance of justice, and in such cases the justice assigned to the Special Term during those months may hold such trial in that branch of the court. 548 New Yoek City Couet. [Kule 5 RULE II. Special Calendai. There shall he a special calendar to be called in Part IV only for the trial of actions placed thereon pursuant thereto. In actions on contract, of replevin, or for conversion, where a note of issue has been filed and the cause noticed for trial, either party may apply to the Special Term on two days' notice to the adverse party for an order placing the cause on the special cal- endar. Upon such application, if it satisfactorily appear by affidavit and the pleadings that the trial of the action will not occupy more than two hours and that no good reason exists why the same should not be promptly tried, the court may, by order, place the cause on the special calendar for trial. The order shall specify the number of the cause on the general calendar and a copy thereof must be filed with the calendar clerk. If the trial shall actually occupy more than two hours, the court may, in its discretion, send the cause to the foot of the general calendar. RULE m. Application for a Preference — Where Made. Application for a preference under section 791 of the Code of Civil Procedure must be made in Trial Term, Part I, and notice thereof served with the notice of trial, agreeably to section Y&S. RULE rv. Actions for Less Than $250 — When Not Advanced. No action brought for the recovery of less than $250, which could have been brought in the Municipal Court of the city of New York, will be advanced to the special calendar. RULE V. Advanced Causes — Order of Trial. All actions hereafter advanced to the special calendar shall be called and tried, or otherwise disposed of, in the order in which the same are placed thereon, unless postponed for legal cause, shown by affiidavLt Kule 9] Special Rules of Practice. 549 RULE VI. Actions Transferred from Other Courts. In actions transferred to ttis court, by consent, from other courts of record, the party filing the order of transfer shall file with the clerk of this court engrossed copies of the summons and pleadings in such action; and the clerk shall not enter the cause on the trial calendar if the copies presented to him are not clearly and legibly written. RULE vn. Pleadings Furnished to Court — Duty of Attorney. It shall be the duty of the attorney, 'by whom the copy of the pleadings shall be f umished for the use of the court on a trial, to plainly designate on each pleading the part or parts thereof which are claimed to be admitted or controverted by the succeeding pleading. RULE vm. Cases in Which a New Trial is Ordered at Appellate Court. In lieu of the pleadings in actions wherein a new trial is granted, the party moving the case for trial must furnish the justice with a printed copy of the appeal book, and a copy of the opinion of the Appellate Court on whose order the case is re- manded for the new trial. RULE IX. Construction of Orders Granting Allowance. Whenever an allowance shall be granted to the plaintiff, the order granting the same (unless expressing otherwise) shall be construed to intend an allowance upon the recovery had, and not upon any counterclaim pleaded by the defendant. If the allow- ance be granted to the defendant, the order granting the same (unless expressing otherwise) shall be construed to intend an allowance upon the demand claimed in the complaint, except when an affirmative judgment be given in favor of the defendant; in which case the allowance shall be computed upon such affirmative recovery, as well as upon the amount claimed in the complaint. 550 New Yoek City Couet. [Kule 13 RULE X. Marine Cases. Marine cases must be commenced (under the Code) by sum- mons, and if the plaintiff applies for an order of arrest to accom- pany the summons, it must be in the form and to the effect required by section 3178. The pleadings may be oral or in writ- ing; if oral, the clerk must enter the substance thereof in the minutes. If a jury be demanded, the justice presiding at Special Term may, in his discretion, transfer the action to any one of the Trial Terms; or he may cause to be impaneled a jury for the purpose, and try the cause at Special Term; and said tribunal is hereby declared to be a Trial Term, for the special purpose of considering and determining such cases. RULE XI. Jurisdiction. Torts committed on board a foreign ship, on the high seas, must be considered as having occurred within the territorial limits of the foreign nation to which the vessel belongs; and the parties having the ship's equipage, though actually here, are still deemed within the foreign jurisdiction. In such case, the court, having discretion to exercise the power, will decline jurisdiction, unless it is made to appear either : First, that the plaintiff or defendant has been regularly discharged from his ship by competent authority; or, second, that either of the parties is a resident or citizen of the United States. In the excepted cases only will process be allowed. RULE XII. Special Term. The justice assigned to the Special Term shall also attend to the chambers business during the term to which he may be assigned. Demurrers shall be heard and determined at Special Term, and may be brought on for hearing upon the usual notice of argument, and the filing of the note of issue provided for in Eule 15. RULE xin. No Ex Parte Order of Reference in Supplementary Proceedings. No ex parte order of reference will be made in supplementary proceedings. Eule 17] Special Kules of Peactioe. 551 RULE XIV. Extension of Time to Answer. No extension of time to answer for more than two days will be granted, unless upon notice to plaintiff's attorney. RUIE XV. Daily Motion Calendar. The clerk assigned to Special Term and chambers shall prepare a motion calendar for each day of the term, other than Saturdays, and place thereon all causes in which notes of issue have been filed, not later than 4 p. m. of the day previous to the return day of the motion, and furnish a copy thereof to the New York Law Journal for publication. The justice presiding at Special Term may add to the calendar, on a day for which it is noticed, any motion not appearing thereon. Motions must be made returnable at 10.30 A. M., at which hour the calendar will be called and de- faults noted. RUIE XVI. Older in Supplementary Proceedings to Punish for Contempt; When Returnable. Orders in supplementary proceedings, to punish a judgment debtor for contempt, shall not be made returnable in less than three davs from the time of service thereof. RUIE XVII. Calendar Practice. The clerk shall each week make up a calendar of cases from the general calendar, which calendar or the numbers of the cases in- cluded thereon, shall be published at least two days before the same is called. This calendar shall be called by the justice as- signed to Part III, Trial Term, on the Friday preceding the com- mencement of each term, at 4 p. m., unless another day is speci- ally fixed by him to call such calendar in the Special Term room. Causes on such call calendar must be answered " ready " or " off." " Eeady " will mean that the causes so answered are to be placed upon subsequent day calendars for trial, and if the causes are marked " off," cai;ses so answered will not again appear upon the call calendar until the last number of said call which is marked " ready " shall have been reached upon the day calendar for trial. 552 New York City Couet. [Kule IS Day Calendar. The said clerk shall make up a day calendar for each day from the causes so marked " ready " upon the call calendar of the court, upon which shall be placed all such causes so marked " ready " at the previous call or remaining undisposed of from the calls theretofore had, which day calendar shall be called in the Trial Term room, Part III of this court, at 9.45 a. m. each day, and three causes therefrom shall be assigned to each of the several trial parts, except Part IV, for trial. When a cause thus set down on the call calendar on any Friday as " ready " appears upon the day calendar, it must be tried or go to the foot of the general calendar, unless it appears by affi- davit to the satisfaction of the justice calling the day calendar that the trial cannot with justice to one of the parties proceed. The court may then by order set the cause down for trial on another day in the term or place the cause on the call calendar for a subsequent call. In a cause upon the day calendar for trial, where it shall appear to the court by affidavit that counsel who is to try the cause is to argue a cause on the day calendar of the Supreme Court of the United States, or upon the day calendar of the Court of Appeals of the State of New York, or upon the day calendar in the Ap- pellate Division of the Supreme Court, or is actually engaged in the trial of a cause in a court of record of the counties of New York or Kings, the cause shall be passed for the day, or until such argument or trial is concluded, unless the trial in which counsel is engaged is a protracted one. In no other event shall a cause upon the day calendar be passed for the day. In no event shall a cause on the day calendar be passed from day to day on account of the engagement of counsel for more than two days. Not more than two causes shall be held " ready " on the day calendar for one counsel, in addition to the cause in which he is engaged, and in all causes the counsel who is to try the same must be designated, if required by the court, on the call of the day calendar. EuiE xvin. Miscellaneous — Fees Paid to the Clerk not Returnable. Pees paid upon filing notes of issue are, so soon as they reach the hands of the clerk, in the constructive possession of the city Kule 20] Special Etjles op Pkactice. 553 of New York ; and it is made the official duty of that clerk to pay them, with other lawful fees collected by virtue of this office, into the city treasury. RUIE XIX. Equity Causes. Equity causes will be placed upon the Friday call calendar on five days' notice of trial and will be called from said call calendar each term and must be answered " ready " or " oiF," as provided in Eule XVII. When such causes so marked " ready " appear upon the day calendar, pursuant to such rule, said causes shall be assigned to the several trial parts for trial by the justice calling the day calendar. RTTIE XX. Special Rules Concerning the Duties and Obligations of the Clerk of the City Court of the City of New York. 1. The clerk, on assuming office, shall make and file, in dupli- cate, his oath of office, one of which duplicates shall be filed in the office of the city clerk, the other in the clerk's office of this court, and give a bond as now prescribed by law. 2. The clerk, or, in hi^ absence, the deputy, shall make state- ments in writing, duly verified by his oath, of all moneys re- ceived for fees or otherwise by him as said clerk, and shall pay into the finance department of the city of ISTew York all such moneys so received by him for the use of or belonging to the city, as required by law ; and these acts shall be done once in each and every month, and a duplicate of such statements in writing, also duly verified, shall be at the same time delivered to the chief jus- tice of this court, or, in his absence, to the justice then presiding at the Special Term, accompanied by a voucher from the said finance department, showing that such money has been actually so paid over after the auditing and approval of the monthly state- ment by the department. All other money hereafter received or deposited in this court in any action or proceeding, and not belong- ing to the city of New York, shall, without delay, be specially de- posited with the chamberlain of the city of New York; and the matter, to which each deposit relates, particularly indicated on the certificate of such deposit. 554 New Yoek City Couet. [Kule 21 3. On the last Monday in each and every month, the clerk or, in his absence, the deputy clerk, shall make a full statement, in writing, duly verified by his oath, of all moneys paid into the court and received by him during the preceding month, by and within the scope of his official capacity, and which are not in- cluded in the said monthly statements made to the finance de- partment. This shall show in detail in what action, or proceed- ing, the money has been received, what amount of the money has been paid over, and to whom, and when, and upon whose order, the same was paid over ; and it shall show by voucher, that any of the money, yet retained in the custody of the court, is on deposit with the said chamberlain. Such statements shall be delivered to the chief justice, or, in his absence, to the justice presiding at the Special Term. 4. No money deposited in the custody of the court, in any ac- tion, or in any proceeding, shall be paid out, except on the written order of one of the justices, filed in the office of the clerk. Copies for service must be certified by the clerk and the seal of the court, and be countersigned by a justice. RULE XXI. Complaint Dismissed at Trial Term — Kestoration. Where a complaint is dismissed, or an inquest allowed, at a Trial Term, the cause will not be restored on consent of the parties; but the facts may be presented to the justice presiding in the part where the cause was disposed of, or at the Special Term, by motion for action thereon. Former Rules Abrogated. All rules heretofore in force and not contained herein, are hereby annulled. City Court of the City of New York. ' At least three days' notice of settlement of all orders upon , remittiturs from the Appellate Term and Appellate Division, , Supreme Court, shall be given before presenting the same for signature and entry. i Dated New York, January 21, 1909. By order of the court. Hule 6] Special Rules of Peactice. 655 Rules Adopted by the Justices of the Court of Special Sessions of the First Division of the City of New York.* RULE I. The Court of Special Sessions of tlie First Division of the city of New York shall be held in the building for criminal courts in the borough of Manhattan, in the city of New York. RULE II. A term of the court shall be held each month, and commence on the first Monday of each month, unless such day shall be a legal holiday, and then the term shall commence on the day following. RULE in. The court shall open at 10 o'clock in the forenoon, and shall be held upon each and every day of the year except upon Saturdays, Sundays and legal holidays, unless the court for sufficient reasons ■of a public nature otherwise directs. RULE IV. The clerk, deputy clerk and all the other officers and attendants of the court shall be present at the sessions of the court, unless absent by consent or direction of the court, or for good and suffi- cient reasons satisfactory to the court. RULE V. The duties of the clerk and deputy clerk shall be the same as those now performed by the clerk and deputy clerk of the Court of General Sessions, in the county of New York, as near as may be, in addition to those enjoined upon them by law. RULE VI. The stenographer and interpreter shall perform the duties usu- ally performed by such officers in courts of law. The assistant clerk shall perform such duties of a clerical nature as he may, by * Kules I to XI inclusive, also adopted by the Second Division of the Court. 556 jSTew Yoek City Couet. [Eule 8 the clerk or deputy clerk, be called upon to perform. All other officers and attendants of the court shall perform the duties appro- priate to their respective positions as they may he from time to time directed by the court or its clerk or deputy clerk. RTiiE vn. Except when otherwise directed by the court, the clerk shall cause a calendar to be made up for each day the court is held. Upon such calendar a sufficient number of cases shall be entered to occupy the court for the day, and cases shall be entered under proper heads upon such calendar as follows: First. Cases entitled to a preference under section 291, sub- division 7, of the Penal Code. Second. Cases in which defendants have not yet pleaded. Third. Cases for trial in which defendants are in actual custody. Fourth. Cases for trial in which defendants have been admit- ted to bail. Fifth. Upon such days as the court may direct, proceedings re- specting bastards and disorderly person cases must be arranged as nearly as possible in the order of the numbers stamped upon the depositions in each case, and will be disposed of as they are reached upon the calendar. Cases shall not be adjourned, except for legal cause. The court shall have at all times power to depart, for good and sufficient reasons of a public nature, from this rule and order its calendar and dispose of the cases thereon in its discretion. EULE vin. The order of procedure in conducting the business of the court shall be as follows, to wit: First. The disposition of cases which, under section 291, sub- division 7, of the Penal Code, are entitled to preference. Second. Hearing of motions. Third. Sentencing of defendants previously convicted. Fourth. Arraignment of defendants for pleading; and, in cases where pleas of " guilty " are entered, the imposition of sentence, if the court desires then to impose it and the defendant waives delay. Rule 12] Special Rules of Peactice. 557 Fifth. Disposition of cases entered upon the calendar for trial. The court may, for reasons of a public nature, depart from this order of procedure. RULE IX. The justices shall meet on the iirst Mondays of January, April, July and October of each year to transact such business as they may as a body do. But a special meeting may be held at any time by consent of all the justices, or may be called by any two of the justices by five days' written notice indicating the nature of the business it is desired to transact, and signed by such justices. Each justice shall give the clerk of the court an address where matters may be sent to him by mail; and the mailing to him at such address of notice of a special meeting five days before the day for which such meeting is called, shall be due notice thereof. RULE X. The justices shall make, and may from time to time alter, assignments of justices for holding each term of the court, and such assignments shall be so ordered that as nearly as may be each justice shall be assigned to three consecutive terms. In making said assignments, the justice to preside at each term shall be indicated. The justice so selected to preside shall be known and described as the presiding justice, and the other two justices holding the term with him shall be known as and described as associate justices. Whenever, for any reason, the presiding jus/- tice assigned to hold any term of the court -shall .be absent, the court shall designate one of the justices holding court to act as presiding justice, RULE XL The practice and procedure of the court shall in all cases not provided for by law or by the rules of this court be that of the Court of General 'Sessions of the city and county of New York. RULE XIL The foregoing rules shall not apply to the practice and pro- cedure in the Children's Part of this court, but the procedure and practice in said Children's Court shall be regulated and controlled by the justice presiding in said court at his discretion, except that 558 New York Municipal Couet. [Eule 1 the rules applicaWe to tlie clerks and other officers of this court shall apply to and control the actions of said clerks and other officers of said Children's Court. RULE xin. When a case in the Children's Part of the Court of Si)ecial Sessio'ns of the First Division of the city of New York is ad- journed to be tried before three justices of the Court of Special Sessions, as provided in section 1419 of the Greater New York charter, as amended by section 3, subdivision 3, of chapter 590 of the Laws of 190'2, such trial shall be had at the main courtroom of said Court of Special Sessions of the First Division of the city of New York, in the building for criminal courts. Rules of the Municipal Court of the City of New York. RiriE I. Calendar Practice. (a) 'Court shall open at 9 o'clock a. m. (b) The parts of the court in each district shall be numbered consecutively. (c) In any district where more than one part is held, all process, orders to show cause and notices of motion shall be made returnable and called in Part I, and all calendars shall be called in that part. In any district where, in the judgmient of the elected or appointed justices thereof, the volume of business is too great to be accommodated by the call of the entire calendar in Part I such justices may (file with the secretary of the board of justices a written designation of Part II as the part of said court where the calendar of adjourned causes shall be called, and due notice of such designation shall be conspicuously posted in and about the court premises. (d) The process of the court shall be returnable on any court day. (e) All summonses, precepts, notices of motion and orders to show cause shall be made returnable at 9 o'clock a. m. Where more than one part of the court is in session, the justice calling E.ule 1] Special Eules of Peactice. 559 the calendar shall forthwith, upon a cause being marked ready for trial, assign it for trial to a disengaged part and so continue un- til all parts are engaged. (f) The clerk of each district shall prepare a day calendar, containing return causes and adjourned causes, which shall be posted in the clerk's office before the opening of the court. Causes shall be placed upon the trial calendar in the order in which they have been adjourned. The clerk shall note upon the calendar the causes entitled to a preference under Rule XII. (g) During the months of July and August, court shall be held on such two days during each week, as the presiding justice shall designate, and during said months no cause other than proceed- ings for the summary recovery of real property and actions brought to recover wages shall be tried, except by order of the presiding justice. (h) There shall be in each district a reserved generally calen- dar, on which calendar the court may, of its own motion, place any cause which has been adjourned more than three times, and on this calendar any cause may likewise be placed by consent or upon stipulation of the parties or of counsel. Causes may be restored on three days' notice and placed on the calendar for trial for a day subsequent, or parties may at any time consent to take a cause from the reserved generally calendar and restore it to the day calendar, upon the approval of the court. (i) There is hereby established what shall be designated as a special calendar, to which causes may be transferred for trial from any of the districts in the borough of Manhattan, by consent of at- torneys. Such consent shall be in a form approved by the board of justices, and blanks may be obtained at the clerk's offiice in the several districts of the borough of Manhattan. Causes so trans- ferred to this calendar shall not be set for trial for any particular day, but shall be placed upon such calendar in the order in which they shall be transferred thereto, and shall be numbered consecu- tively in the order of receipt by the clerk in charge of said special calendar. Such special calendar shall be called in one of the parts of the First District Court of the borough of Manhattan at 9 o'clock each court day, in a part other than that in which any other calendar is called. Cases on this calendar must be 560 New; Yoejc Municipal Couet. [Rule 2 tried when reached, except where legal cause is presented by affi- davit or else marked to the foot of such special calendar. It shall be the duty of the clerk of the First District Court of the borough of Manhattan, or one of the assistant clerks who may be specially designated by the board of justices for the purpofse of attending to this special calendar, and who, if so designated by the board of justices, shall be known as the special calendar clerk, to prepare a day calendar in accordance with this rule, placing thereon as many causes as in his judgment can be reached for trial on the day for which the calendar is prepared. Such calendar shall be posted in the clerk's offiice at least two days in advance, and shall be furnished by such clerk to the " New York Law Journal " for publication. It shall be the duty of such clerk to keep a record of the cases transferred to this special calendar, and to enter thereon the name of the cause and day of its receipt, and the dis- trict from which the same is received, immediately after the re- ceipt of the papers in said cause; and it shall be the duty of the clerks in the respective districts in the borough of Manhattan to forward to the clerk of the First District Court, without delay, any cause which has been transferred to such special calendar. The causes so transferred to such special calendar shall, after such transfer, be considered as transferred for all purposes to the First District Court of the borough of Manhattan, and as pending therein, and all future records shall be made in such district. EULE II. Filing of Return and of Other Papers. (a) All process, pleadings and writings filed with the clerk shall be appropriately indorsed, and the clerk shall, on such papers being filed, stamp the same " filed," with the date of filing, and write his name or initials of his name and the title of his office thereon. Unless properly indorsed the clerk shall not ac- cept any papers for filing. (b) To entitle a cause to be placed on the calendar, the sum- mons or other process must be returned with proof of service thereof to the clerk's office, and the calendar fee paid at least two days before the return day. This rule shall not apply to precepts in summary proceedings where, by direction of the court, they are made returnable on the same day as issued. Eule 5] Special Etjles of Peacticb. 561 (c) The summons, wlien returned to the clerk's office, shall be indorsed with the residence or post-office address of the plaintiff, and also the name and post-office address of the attorney, if any. The indorsement upon the summons of the address of the plain- tiff shall he deemed his post-office address for the purpose of the service of papers in all cases where papers may be served upon the plaintiff. (d) The indorsement of the name and address of the attorney on the summons, pleading or any other paper in an action or proceeding shall be deemed an appearance within the meaning of section 332 of the Municipal Court Act. EULE III. Entry of Order on Justice's Decision. The indorsement of the justice upon any paper or process shall be the equivalent of the entry of a formal order, but either party desiring it may enter a formal order upon the decision of the justice. RULE IV. Time Within Which BiU of Particulars Shall be Filed. When a bill of particulars is ordered, the same shall be filed in the clerk's office within three days after such order is made, unless other direction is made by the justice. RULE V. When Jury Trial is Demanded. (a) When a jury is demanded, the jury shall be publicly drawn by the clerk from a panel under the supervision of the presiding judge. (b)' It shall be the duty of the clerk to deliver the venire to the marshal or other person designated to effect service upon jurors at least three days before the jurors are required to attend, and it shall be the duty of the party receiving the venire to effect service thereunder upon the jurors forthwith. This provision may be modified by the presiding justice in summary proceedings to recover possession of real property. 86 562 MuNTciPAL CouET, CiTY OF New Yoek, [Rule 10 RULE VI. "Where Original Process is not Returned to the Court. If the original summons or other process or mandate of the court is not returned to the office of the clerk, the court may in- dorse a dismissal of the action or proceeding upon the copy of such summons, process or mandate, or grant other appropriate relief and award costs in proper cases ; and such copy of summons, process or mandate, with such indorsement thereon, shall there- upon be filed with the clerk, and shall have the same effect as if the original had been so indorsed or filed, provided proof of service is made, or written notice of appearance by attorney is filed. EULE vn. Stipulations Adjourning Trial. All written stipulations adjourning trial must be approved by the justice presiding in the district in which the action is pending, and must be filed at least one day before the day for which the case is set for trial. RULE vm. Adjournments for Cause. Causes set down for trial shall be tried when reached, unless legal ground for adjournment is presented by affidavit. RULE IX. Motions. (a) Motions may be brought on for hearing on not less than three days' notice, unless otherwise directed by the court (b) Ex -parte applications may te made to any justice without regard to the district in which the action or proceeding is pend- ing, or about to be commenced. Upon all such applications an affidavit shall be presented, which shall state whether any previous application has been made, and, if made, to what justice, and the reasons, if any, for a previous denial of the relief asked for. RULE X. An Undertaking to Secure Discharge of Levy on Attachment. No approval of an undertaking given by the party or claimant to procure discharge of a levy under an attachment shall be Rule 13] Special Eules or Pkactice. 563 granted ex parte. A party or claimant applying for such ap- proval shall give at least two days' notice of justification to the adverse party. RULE XI. Stipulations Extending the Court's Time to Decide. A stipulation to extend the time of the court within which to render a judgment or make a decision must be in writing or noted upon the minutes of the trial. RULE XII. Preferred Causes. The following causes shall have preference on the calendar in the order named : (1) Actions to recover wages. (2) Summary proceedings to recover possession of real property. (3) Causes held ready on the preceding trial day and not reached at the hour of adjournment. (4) Actions on a written instrument for the payment of money only. RULE xin. Duties of Clerks and Other 0£SciaIs. (a) The conduct of the office of clerk in each of the districts shall rest with the clerk, who shall be clothed with the responsi- bility of keeping the proper records required by law, and of pre- serving the papers and records of the court. The duties of the deputy clerk and such assistant clerks and other court oificials attached to the court, when not in conflict with any statutory provision, or anything contained in these rules, shall be desig' nated by the clerk. Such duties shall be specified in writing by the clerk, and, when approved by the justice or a majority of the justices elected from the district, shall be filed with the secre- tary of the board of justices. (b) The clerk, deputy clerk, assistant clerks, interpreters and attendants shall report for duty promptly at the places to which they are assigned at 8.45 o'clock a. m. each day, and shall be 564 Municipal Couet, City of New Yoek. [Eule 13 in attendance until 4 o'clock, or until such later time as the court adjourns for the day. (c) All court attendants shall, when on duty in and about the court, wear such uniforms and badges as may be prescribed by the board of justices. The court interpreter shall wear an oiEcial badge during the session of the court. (d) The stenographer shall be in attendance during the sessions of the court and at such other times and places as the justice appointing him may direct. (e) It shall be the duty of the court attendants to maintain order in and about the court and the officers thereof, and perform such other duties in connection with the work of the court as the justice or justices of the district to which such court attendants may be assigned shall require. (f) The clerk in each district, or in his absence, the deputy clerk, shall, on or before the third day of each month, make a statement in writing, duly verified by his oath, of money re- ceived for fees by him as such clerk during the preceding month, and on or before the day named pay into the finance department of the city of Wew York all such moneys received by him for the use, or on behalf, of the city, for the preceding month, as required by law. A summary thereof shall thereupon be filed with the secretary of the board of justices, together with a de- tailed statement of the business of the court for the previous month. The clerk, or, in his absence, the deputy clerk, of each court shall keep accurate accounts of the moneys received by him, and shall deposit in such bank as the comptroller of the city may designate all such moneys. (g) The clerk shall take receipts for all moneys paid out by him. (h) In the docket of summary proceedings which the clerk of the court is required to keep, pursuant to section 2-84 of the Municipal Court Act, he shall enter, in addition to the matters he is required to enter by the provisions of that section, the fol- lowing: The particulars of the final order of the court, the date of the issuing of a warrant and to whom; the return and when made, and the particulars of such return. Rule IT] Special Eules of I'eactice. 565 RULE XIV. Submission of Papers. All papers shall be submitted to the clerk in the district in which the action is pending, and it shall be the duty of the clerk to forward such papers promptly to the justice to whom they are to be submitted. In forwarding records to other districts, the clerk shall in all cases obtain a receipt for the records delivered. RULE XV. Duty of the Secretary of the Board. It shall be the duty of the secretary of the board of justices to safely keep in lais possession, as a public record, any paper, document or record which he is required by law, or by the rules of the board of justices, to keep, which records shall be open for public inspection. RULE XVI. Return on Appeal. The return on appeal shall be made up as follows : 1. The judgment-roll, which shall include the summons or other process, the pleadings, stipulations, orders and the judgment, which shall be fastened together. 2. AU exhibits, which shall be inclosed in a separate cover, ap- propriately indorsed. 3. The stenographer's minutes, which shall be transcribed by the stenographer on suitable paper eight inches wide and ten and one-half inches long, with an index, inclosed in a suitable cover, and appropriately indorsed. The clerk's return shall be annexed to the stenographer's minutes. RULE xvn. stenographer's Fees. The fees of the stenographer for a transcript of his minutes pursuant to section 353 of the Municipal Court Act shall be de- posited with the clerk of the district where the action or proceed- ing is pending, who, upon the filing of the transcript, shall de- liver the money deposited to the stenographer. 566 Municipal Couet, City of New Yoek. [Eule 4 The Board of Justices of the Muncipal Court, city of New York, has adopted the following: On and after Monday, January 4, 1909, the special calendar provided for by Rule 1, subdivision 1, of the Municipal Court of New York city will be called daily in Part IV of the Municipal Court for the borough of Manhattan at 9 o'clock a. m., at the Court House, Sixth avenue and Tenth street (Jefferson Market). Cases not requiring jury trials may be transferred from any district in the borough of Manhattan to such calendar by consent of parties and order of the court, and numbers will be given to such causes when received by the clerk of the special calendar, and will be called upon the day calendar according to such num- bers for trial or other disposition. RULES RELATIVE TO CLERKS AND ATTENDANTS OF THE MUNIC- IPAL COURT. RULE I. The clerk, assistant clerk, interpreter and attendants of each court shall attend each day from 9 o'clock a. m. to 4 o'clock p. m., and at such other times as the justice may direct, except as otherwise provided by law. The stenographer shall be in attend- ance during the sessions of the court, and at such other times and places as the justice may direct. RULE n. The attendants shall maintain order in and about the court and the offices thereof. RULE ni. The attendants and interpreter shall wear an official badge during the session of the court. RULE IV. During the session of the court the clerk thereof, or, in his absence, the assistant clerk, shall be in attendance therein, admin- ister oaths, keep minutes and receive the verdict of a jury, and when not so employed the time of the clerk and assistant clerk shall be devoted to the business of the clerk's office. Rule 15] Special Eules of Peactice. 567 EULE V. The clerk of each court, or, in his absence, the assistant clerk, shall, on or before the third day of each month, make a statement in writing, duly verified by his oath, of moneys received for fees by him as such clerk, during the preceding month, and on or 'before the day named, pay in to the finance department of the city of ISTew York all such moneys received by him for the use, or on behalf of the city, for the preceding month as required by law. A summary thereof shall thereupon be filed with the secretary of the board of justices, together with a detailed state- ment of the business of the court for the previous month. RULE VI. The clerks and assistant clerks shall keep and preserve full, correct and true re-cords of the proceedings of the court, and of their office, properly file and preserve all process, pleadings, man- dates or other papers, deposit in bank all moneys paid to them, keep accurate accounts thereof, and shall faithfully perform the duties imposed upon them by chapter 580 of the Laws of 1902. RULE vn. When moneys are paid to persons other than parties or their attorneys the clerks shall require and file in their ofiices a written request from the party or the attorney entitled to such moneys to authorize such payment, and a receipt therefor. RULE XV. Ulx parte applications may be made to any justice without re- gard to the district in which the action or proceeding is pending or about to be commenced. The aifidavit shall, however, state whether any previous application has been made, and if made, to what justice, and what order or decision was made thereon, and what new facts, in any, are claimed to be shown. It shall also state the residence of ■ the parties. For failure to comply with this rule any order made on such application may be revoked or set aside. The denial of an ex parte application, with the reason therefor, may be indorsed therwn by the justice to whom the same is presented. 568 Municipal Court, City of New York. [Eule 22 RULE XVI. No approval of an undertaking given hj a party or claimant to procure the discharge of a levy under an attachment shall be granted ex parte. The party or claimant applying for such ap- proval shall give at least two days' notice of justification to the adverse party. RULE XVIL A stipulation to extend the time of the court within which to render a judgment or make a decision may be entered into be- tween parties or their attorneys on the record in the minutes of a trial, or in a written stipulation signed to that effect. RULE xvm. Affidavits of service of process must in all cases comply strictly with the provisions of Rule XVIII of the Supreme Court Rules. RULE XIX. Costs shall not be awarded to a defendant who appears by attorney when there are no verified pleadings, unless a written notice of appearance is filed. RULE XX. The phrase " case on appeal " in sections 317 and 318 of the Municipal Court Act shall be deemed to refer simply to the jus- tices' return on appeal as the same has been heretofore known. The phrase " including the evidence " shall be deemed to include all exhibits admitted in evidence. RULE XXI. In cases where attorneys may be represented by clerks, the clerk or clerks so appearing shall be only those whose certificates of clerkship shall have been filed in the office of the clerk of the Court of Appeals. ^^^^ ^^^ When a cause has been adjourned more than three times, by consent or stipulation, the court may, on its ovm motion, place it upon the calendar of causes reserved generally. It may be re- stored on three days' notice, and placed upon th.e calendar for trial for a day subsequent. Parties may at any time consent to take a cause from a day calendar and place it upon the calendar for causes reserved generally. Kule 3] Special Rules of Practice. 569 Rules of the Court of General Sessions in and for the City and County of New York. CALENDAR AND PRACTICE RULES. RULE I. The clerk shall enter in a book a record of all indictments pend- ing in the Court of General Sessions on the 1st day of January, 1910, and of all indictments which shall be found thereafter in said court, or transferred thereto from the Supreme Court, upon which issue shall have been joined by a defendant's plea or demurrer. Said indictments shall be entered in said book accord- ing to the^date of the joinder of issue. When two or more defend- ants are jointly indicted and issue has been joined on different dates, the date of issue shall be the date upon which issue was first joined by any defendant by plea. RULE n. The clerk shall make and keep two calendars, to be known, respectively; as, (1) " Calendar of Prison Actions," which shall contain a list of all actions wherein a defendant is imprisoned, and (2) " Calendar of Bail Actions," which shall contain a list of all actions whsrein a defendant has been admitted to bail. Actions shall be placed by the clerk upon such calendars, respec^ tively, in the order of the joinder of issue. RULE ni. The clerk shall make up from the General Calendar of Prison Actions a calendar to be known as the Call Calendar of Prison Actions. Said calendar shall consist of indictments upon which issues shall have been joined by plea, in the order of the joinder of issue. Said calendar shall be called by the judge holding Part I on Monday, Wednesday and Friday of each week, at 2 p. m., unless the said judge shall otherwise direct. Upon such call, the judge shall assign said actions for trial, in rotation, to Parts I, II and III of the court, except as hereinafter provided. 570 Court of General Sessions — New Yoek. [Rule 9 RULE IV. The clerk shall make up from the General Calendar of Bail Actions, a calendar to be known as the Call Calendar of Bail Actions. Said calendar shall consist of indictments upon which issue shall have been joined by plea, in the order of the joinder of issue. Said calendar shall be called, by the judge holding Part I, on Friday of each week, at 2 p. m., unless said judge shall otherwise direct. Upon such call, the judge shall assign said actions for trial, to Part IV of the court, except as hereinafter provided. RULE V. Actions in which the defendants are charged with homicide, and all other actions wherein it shall appear to the satisfaction of the judge that the trial will necessarily occupy more than three days, whether the defendant is imprisoned or under bail, shall be assigned to Part V of the court for trial. RULE yi. If an extended term of the court be held, the judge calling the call calendar shall assign to it for trial either bail or prison actions, or both. RULE VII. A judge holding any part of the court may transfer an action from his part to another part, with the concurrence of the judge presiding over such other part. RULE vin. When there are more indictments than one against the same defendant, upon which issue has been joined by plea, the actions, when assigned for trial, shall be assigned to the same part of the court. RULE IX. When there are codefendants in an action, and some, but not all, furnish bail, the action shall be deemed a prison action as against all the defendants. Rule 14] Special Rules of Peactioe. 571 EULE X. Calendars for the Respective Parts of the Court. Each part of the court shall have two calendars, to be known respectively; as (1) preferred calendar; and (2) regular calendar. RULE XI. The clerk shall make up calendars for the respective parts of the court for each day, from the actions assigned from the call calendars, in the order of the dates of the joinder of issue. He shall arrange the actions entitled to a preference under the title, " Preferred Calendar," and all other actions imder the title, " Regular Calendar." RULE XII. Preferred Calendar. When a defendant in an action is charged with the violation of any provision of sections 480 or 481 of the Penal Law, or when a defendant under the age of sixteen years is charged with an offense triable in this court, or when a defendant is charged with an offense against the person of a child under the age of sixteen years, the trial of any such action shall have preference over all other actions in the part of the court to which it is assigned ; and the clerk shall place the action upon the calendar of said part under the title, " Preferred Calendar." RULE xin. "When a witness has given an undertaking, or is detained to appear against a defendant in an action, or when a material wit- ness in an action is a nonresident, or is about to leave the State, the trial of any such action shall be placed upon the preferred calendar following the actions entitled to a preference under Rule XII. RULE XIV. The trial of an action may also be preferred, whether or not such action be on the call calendar, when it appears, by certificate of the district attorney, or by affidavit of the defendant, to the satisfaction of the judge presiding in Part I, that there should be a speedy trial. The action shall be assigned thereupon to a part 572 CouET OF General Sessions — New York. [Rule 18 of the court, and shall be tried immediately, or upon the con- clusion of any action on trial in such part. The motion to prefer shall be made on one day's notice. RULE XV. Upon the call of the call calendar, it shall be the duty of the district attorney, by certificate, or of the defendant, by affidavit, to inform the judge if an action be entitled to preference under Eules XII, XIII and XIV, or if a special disposition of the action be required under Rules V, VIII, IX and XVI. RULE XVL If, upon the call of a call calendar, it be established by cer- tificate of the district attorney or by affidavit of the defendant, to the satisfaction of the judge that an action should not then be assigned to a part for trial, the judge may direct that the action be placed upon a subsequent call calendar. RULE xvn. "When an action appears upon the day calendar, it must be tried, unless it appears by certificate of the district attorney, or by affidavit of the defendant, to the satisfaction of the judge call- ing the day calendar that, in consequence of the happening of an event since the action was assigned for trial, the trial thereof cannot proceed vrith justice to either the people or the defendant, the judge may then set the action down for trial on another day in the term, or transfer the action to the call calendar. RULE xvm. When an action is on the day calendar for trial, if it shall appear to the judge, by affidavit, that the counsel who is to try the action is to argue a cause on the day calendar of the Supreme Court of the United Stats, or on the day calendar of the Court of Appeals of the State of New York, or on the day calendar of any Appellate Division of the Supreme Court, or is actually engaged in the trial of a cause in a court of record in the State of New York, the trial of the action shall be passed for the day, or Eule 23] Special Rules of Peactice. 573 imiil such argument or trial is concluded, unless the trial in which counsel is engaged is a protracted one. In no other event, except as provided in Eule XVII, shall the trial of the action upon the day calendar be passed for the day. RULE XIX. When a defendant gives bail after the action has been assigned to a part for the trial of prison actions, the action shall be dis- posed of in the part to which it was originally assigned ; or, in the discretion of the judge presiding in such part, it may be trans- ferred to Part IV for trial. RULE XX. If a defendant under bail be rearrested on the original charge and be thereupon committed, the action shall be placed on the calendar for prison actions, unless he be admitted again to bail. RULE XXI. When two or more defendants are jointly indicted, and one or more defendants have been tried before the judge holding the part to which the action was assigned, tlie trial of the remaining de- fendant or defendants shall proceed before the same judge, unless otherwise ordered by such judge, or, in his absence, by the judge presiding in Part I. RULE xxn. Withdrawal of Plea. When an action is called upon the call calendar a defendant may apply to withdraw his plea of not guilty and interpose a plea of guilty. A defendant, at any time after his action has been assigned for trial to a part of the court, may apply also in such part, upon one day's notice to the district attorney, to withdraw his plea of not guilty and interpose a plea of guilty. RULE xxin. When an action has been tried and the jury have disagreed, or, if there has been a mistrial, or a juror has been withdrawn, the action may be tried again in the same part of the court, or, in 574 CotTET OF Geneeal Sessions — New Yoek. [Eule 27 the discretion of the judge, the action may be transferred to the next appropriate call calendar, and it shall appear at the head thereof. RULE XXIV. When a judgment of conviction is reversed a/id a new trial ordered, the action shall be restored to the appropriate call cal- endar within ten days, and it shall appear at the head thereof. RULE XXV. If a judgment of conviction in the Magistrate's Court be re- versed and a new trial ordered, such new trial shall proceed before the judge who ordered the new trial, on a day to be fixed by said judge. RULE XXVI. 'No trial of a bail action shall be had during the months of July, August and September, except on action entitled to a pref- frence under the rules. RULE xxvn. Order of Procedure. The order of procedure shall be as follows: Parti: 1. Judicial direction of the grand jury. 2. Call of the Day Calendar 10 :30 a. m. 3. Motions and appeals. 4. Pleadings. 5. Sentences. 6. Pleas of guilty to indictments from Day Calendar. 7. Trials. 8. Call Calendar — Monday, Wednesday and Friday, 2 p. m. Parts II, III, IVand V: 1. Call of the Day Calendar 10:30 a. m. 2. Sentences. 3. Pleas of guilty to indictments. 4. Trials. A judge may, in his discretion, depart from this order of pro- cedure. Eule 31] Special Rules of Pkactice. 575 RULE XXVIII. Bx 'parte applications to issue a bench warrant, or to fix or in- crease bail, in an action which has been assigned to a part for trial, shall be made to the judge of such part, or, in his absence, to any judge of the court. All other ex 'parte applications and all other motions, except those incidental to the trial of an action, shall be made in Part I. RULE XXIX. Motions to be made in Part I may be noticed for any court day during the term. They must be noticed for 10 :30 a. m. Two days' notice of motion shall be given, unless an order to show cause returnable in less time be granted. Each side shall be allowed fifteen minutes on the argument of a motion, or of an appeal, un- less the court shall otherwise order. Notes of issue for motions and appeals must be filed with the clerk of the court at least one day before the day on which the mo- tion or appeal is noticed to be heard, except where an order to show cause returnable in less time is granted, when the clerk shall place the motion upon the calendar at any time before the hearing, upon the exhibition of the order to show cause and the filing of a note of issue. RULE XXX. All cases on appeal to Appellate Division, First Department, must be submitted to the clerk of this court for certification at least five days before the time specified in Appellate Division Rule VI. EULE XXXI. Appearances of Attorneys. Upon the application of an attorney duly authorized to prac- tice in the courts of this State, the clerk shall enter, in a book to be kept for such purpose, and known as the " Appearance Book," the appearance of such attorney on behalf of a defendant charged with crime in an action pending in this court. The clerk shall not enter any subsequent appearance of another attorney for such de- fendant, without an order in writing made by a judge of this court. 576 Magisteates' Couets — Fiest Division. [Eule 2 Whenever the appearance is entered, as above specified, and the defendant in the action is imprisoned in the city prison, the clerk shall forthwith notify the warden of the city prison of the name of the attorney appearing, and the name of the prisoner for whom such attorney appears. Upon the presentation of an order from any judge of the court, the clerk shall also issue a permit to the attorney named in such order, authorizing him to confer with the defendant or defendants named therein, and such attorney shall thereupon make an entry to that effect in the Appearance Book. Pursuant to the provisions of chapter 542 of the Laws of 1909, the foregoing rules are adopted as the Calendar and Practice Pules of the Court of General Sessions in and for the city and county of New York, to be in force on and after January 1, 1910. Dated, New York, December 14, 1909. RULES GOVERNING THE MAGISTRATES' COURTS OF NEW YORK CITY (FIRST DIVISION). EULE I. Assignment and Rotation of Magistrates. Assignments of magistrates to the several District Courts shall be made by the board of magistrates to cover a period of at least six months, which shall provide for a rotation of magistrates hold- ing said courts. RULE n. Time at Which Courts Shall be Held. The First, Second, Third, Fourth, Fifth and Seventh District Courts shall be opened each day at 9 o'clock in the morning, and shall not be closed for the day before 4 o'clock in the after- noon, except on Saturdays and legal holidays, when morning sessions only shall be necessary, and except also that on the day of general election every court shall remain open until closing of the polls. Except on Saturdays, Sundays and legal holidays, when morning sessions only shall be necessary, and on the day of general election, when it shall remain open until the closing of the polls, the Sixth and Eighth District Courts may be closed at Eule 6] Special Eules of Peactice. 577 any hour in the afternoon of any day, whenever, in the opinion of the magistrate presiding therein, further continuance in session is not required by the business or for the convenience of the pub- lic of that district. RUIE III. Who to be in Attendance. There shall be in attendance at each of such courts, at the times specified in Eule II, all the clerks, clerks' assistants, the court stenographer (if there be any) and all proper court officers assigned thereto; and any violation of this rule may be reported to the board of magistrates by the magistrate presiding in the court where such violation occurs. RULE IV. Ordet of Business. 1. Disposition of precinct returns. 2. Hearing returns on warrants and summonses. 3. Examinations. 4. Hearing and disposing of complaints. The presiding magistrate may vary the foregoing whenever in his judgment the public service may require it. EULE V. Mannei of Keeping Records. The police clerks shall keep, or cause to be kept, in each of the courts the following books : 1. The court record. 2. A bond book. 3. A fine book. 4. A warrant book. RULE VI. Collection and Disposition of Fines. All fines, if the same shall be paid before full commitment, shall be collected by the police clerks in the district in which sttch fines were imposed, and shall be duly entered by him in 37 578 Magistkates' Cotjbts — Fiest Division. [Eule 8 the record, and in the fine book kept for that purpose. Every police clerk shall, on or before the fifth day of every month, prepare or cause to be prepared a written statement which shall be verified under oath by said police clerk, and which shall con- tain a full, just and true account of all the money received by him as fines or penalties during the preceding month. It shall be the duty of every police clerk to present the aforesaid state- ment to the comptroller of the city of New York and to pay to said comptroller all the moneys so received and collected on or before the fifth day of every month as aforementioned. Police clerks shall take receipts for such payments, which shall be annexed to duplicates of said statements, and be retained by the police clerks as vouchers. The fine book kept by every police clerk shall be arranged so as to show in detail the amount of moneys collected by him for fines and penalties; the daily collec- tions, the time and amount of deposit in bank of such moneys, and the time of payments and the amount paid to the comptroller. On or before the tenth day of every month the police clerks, and each of them, shall report to the president of the board of magis- trates the payment to the comptroller by him of the moneys col- lected by him for and be retained by the police clerks as vouchers. RULE vn. Warrants. Warrants shall be issued to peace officers only and, except in cases where the complaint is presented by the district attorney, the magistrate shall not intentionally issue a warrrant save in the district in which the offense is charged to have been committed. Search warrants shall be issued only in the district in which the place to be searched is situated, except it be issued in aid of a prosecution duly instituted in some other district, when it may be issued by the magistrate presiding in the district where such prosecution is instituted. RUIE VIII. Cases of Vagrancy. In cases of vagrancy, and of cases where the order of the magis- trate may deprive any person of his or her liberty, or impose a Rule 11] Special Rules of Peactice. 579 fine, such person shall appear in open court and may be heard in his or her defense, and produce witnesses or any competent testimony in his or her behalf, and the magistrate shall decide each case from the evidence before him. RULE IX. Fixing Bail. All bail bonds, recognizances and obligations demanded or re- ceived by any City Magistrate's Court shall be executed and acknowledged before a proper officer by the party intended to be bonded thereby, and when executed in the presence of the magis- trate taking them, he shall attest the same by his official signature ; and all sureties thereto, before being accepted as sufficient, shall severally subscribe and make oath to an affidavit, in each case naming his residence, which must be in the State of JSTew York, and specifying and locating sufficient property owned by him, and that he is worth a sum at least twice the amount of the obligation assumed by him, over and above all debts and liabilities against him; and, if the magistrate has reasonable doubts about the suffi- ciency of the surety offered, he shall, in addition to such affidavit, make other inquiries or take additional proof as to the identity and responsibility of such surety, and shall, in all cases, reject any surety or sureties whom his judgment does not approve as sufficient. RTJIE X. Transferring Cases for Cause. 'So charge, complaint or person brought before one magistrate shall be sent before another, except for adequate cause, to be fully and at once entered upon the record kept by the police clerk and signed by the magistrate. RULE XI. Recognizances to Keep the Peace. Recognizances to keep the peace must be filed with the clerk of the Court of Special Sessions on or before the fifth day of every month. 580 Magistkates' Cottets — First Division. [Eule 14 RULE xn. Consents to Discbaige. In all cases of the signing of a consent by a city magistrate to the discharge of a prisoner after conviction and final commit- ment, a record thereof shall be made in the record book. RULE xm. Maintenance of Order. In order that the business of the several City Magistrates' Courts may be conducted in an orderly, decorous and efficient manner, in the exercise of the power conferred on the Eoard of City Magistrates by section 6, chapter 601, of the Laws of 1895, loud talking or boisterous behavior in or about any of said City Magistrates' Courts or the offices appropriated to the use of the magistrates or the clerks or other officers of said courts, or the use of any contemptuous or other language, or the performance of any act or the indulgence in any contemptuous or other behavior within the precincts named herein, tending to interrupt the busi- ness of any of said courts or to prevent the transaction of its business in an. orderly, decorous and efficient manner, is pro- hibited. As a further aid to the maintenance of order in and about said Magistrates' Courts, all persons are prohibited from accosting any visitor to any of said courts with a view to ascer- taining the business or errand of said visitor in said courts, un- less such inquiry be made by direction of the magistrate therein presiding. RULE xrv. Bond of Police Cleik. Before any police clerk shall enter upon the performance of his duties, he shall give a bond in all respects complying with the provisions and requirements of section 1395 of the Greater New York charter as to police clerks ; he shall be charged with all the duties and obligations, and shall possess like authority and control in such court as devolve by law or the rules of the court upon police clerks. Eule 16] Special Eules of Peactice. 681 ETILE XV. Whenever two or more persons, some being under and some over sixteen years of age, are charged jointly with the commission of a crime, all of such prisoners shall be arraigned before, and the charge shall be heard and disposed of, by the magistrate presiding in the court of the district wherein the offense was committed. If, subsequent to the arraignment of any prisoner in the Chil- dren's Court, it shall be discovered that he or she is over sixteen years, such fact shall be disregarded and the magistrate shall proceed with and hear or try the case. Applications for the commitment of children for destitution, want of proper guardianship, or for incorrigibility or depravity, may be made to any magistrate presiding in the district courts, but such magistrate shall not proceed in said court further than to sign an order for investigation. The report thereon shall be made to, and all subsequent proceedings shall be had in, the Children's Court. The magistrate presiding in any district court may entertain complaints against children for any violation of law and issue a summons or warrant therefor, but the same shall be made return- able in the Children's Court. If the complaint in any such case shall be reduced to writing, the clerk of the court wherein it is taken shall send it and all papers in the case promptly to the clerk of the Children's Court. EULE XVI. Amendments. These rules cannot be amended except at a regular meeting of the board, and by the consent of a majority of all its members. 582 BoAED City Magistrates, Fiest Division. [Rule 4 Rules Governing the Board of City Magistrates of the City of New York (First Division). RULE I. The officers of this board shall consist of a president and a secretary to be chosen as prescribed by law. EULE II. The president shall preside at all meetings. He shall make all assignments and transfers of police clerks' assistants and other subordinates of the board except police clerks, and per- form such other duties as the board may prescribe. In case the president shall not attend at the time appointed for the meeting of the board, the secretary shall call the board to order and a president pro tern, shall be chosen by the Board until the appear- ance of the president. The president shall decide all questions of order, subject to an appeal to the board, and may substitute any other member to preside in his place during the meeting, or any portion of it, at which the substitution shall be made. RULE III. The duties of the secretary of the board shall be to keep a full and fair set of minutes of each and every meeting of said board of city magistrates, to make, prepare and present to the said board such annual statements or reports of the business done by each of said city magistrates and of the Magistrates' Courts, as is prescribed by law; to make and serve the proper notices of the board for meetings, transfers, etc. ; to act as stationer and store- keeper for the board, distributing all supplies of books, blanks and other stationery to the several courts as such supplies may be needed ; to attend to the printing of all blank forms for use in said courts and by said board; to prepare the monthly payroll of the board and its subordinates, and such other duties as the board may direct. RULE IV. The officers of the board shall be chosen at the last regular meeting of the board in January of each year, and shall hold office Rule 9] Special Eules of Pkactice. '683 for one year, or until the selection of their successors. A ma- jority of all the members of the board shall be necessary to a choice. RULE V. A majority of all the members of the board shall constitute a quorum for the transaction of all business, but a less number may adjourn from time to time until a quorum is secured. RULE VI. The regular meetings of the board shall be held on the last Monday of every month, excepting in the month of August, at 8 o'clock p. m., provided that when such last Monday in any month shall fall upon a legal holiday, such meeting shall be held upon the last Tuesday of such month. RULE VII. The president may, and upon the request in writing of three magistrates shall, call special meetings of the board, but notice for same shall be issued at least twenty-four hours before the time for which said meeting is called, and shall state the object of such meeting. No other business shall be transacted at such meeting except by the unanimous consent of the members present. RULE VIII. The order of business at the meetings of the board shall be as follows : 1. Eeading of the minutes of the previous meeting. 2. Reports of committees. 3. Motions and resolutions. 4. Unfinished business. 5. Miscellaneous business. RULE IX. The minutes of the proceedings of the board shall at all times be opened for public inspection, under the care of the secretary. 584 BoAED City Magistbates, Fiest Ditision. [Rule 15 RULE X. Upon tte question of the appointment of any police clerk or other subordinate by the board, the members shall vote as their names are called by the secretary, and the vote of each member shall be recorded in the minutes. A majority of the whole board voting together shall be required to appoint. RULE XI. Police clerks' assistants, stenographers, interpreters and attend- ants may be removed, for cause after hearing, by a majority of aE the members of the board voting for such removal. Xo such removal may be made except at a regular meeting of the board, a previous notice in writing of five days having been given by the secretary to the accused subordinate, such notice specifying the cause of his proposed removal, notifying him of his oppor- tunity for an explanation in the presence of the board. The cause of the removal of any such clerks^ assistant or other subordinate shall be entered briefly in the minutes. RULE xn. All resolution shall be presented in writing, with the name of the mover, and when presented they shall be read, but not con- sidered until seconded. RULE xni. Every member who shall be present when a question is put shall vote for or against the same, unless excused by the board. RULE XIV. The rules of the Legislative Assembly of the State of New York shall govern the proceedings of this board, so far as the same are applicable and not inconsistent with any of the regular rules of the board. RULE XV. There shall be three standing committees, consisting of three magistrates, each to be appointed by the president, to be known as the Committee on Blanks and Forms, the Committee on Build- ings- and Repairs, the Committee on Rules and Discipline. Kule 16] Special Rules or Pkactice. 585 Blanks and Fonns. This committee, of whicli the president shall be a member, shall from time to time, as the occasion demands, draft and prepare all blanks and forms for use in the courts. Buildings and Repairs. This committee' shall attend to all the court buildings, or parts thereof allotted to the city magistrates, the necessity for repairs or alterations therein and to procuring necessary work to be done. On or before the first day of August in each year this committee shall furnish the president with the estimated appropriation neces- sary to make repairs for the ensuing year, with the items thereof, so as to be included in the estimate to be furnished the Board of Estimate and Apportionment. Knles and Discipline. This committee shall consider all matters affecting a change in, or amendment of, the court rules or the board rules, and report any proposed changes or amendments to the board. It will like- wise hear all complaints against subordinates of the board referred to it by the president. If such charges be of a nature warranting a dismissal from service the committee shall reduce the evidence to writing, which, with the findings thereon, shall be reported to the board at a meeting for which a previous notice of at least five days may be given to the accused as required by Kule XI, who at the time shall be cited by said committee to appear before the board. ETJIE XVI. In any case of prolonged physical disability of a magistrate the president of the board is empowered to make a schedule as- signing magistrates off duty to proportionate parts of the term of the disabled magistrate, which schedule shall state the days each magistrate shall hold court for one so disabled, and a copy of such schedule, transmitted to the magistrates by the secretary, shall have the same force and effect as a regular assignment. In order that there may be an equitable distribution of such work among all the magistrates the regular assignment may from time to time be rearranged by the president. 586 Majgisteates' Cotjets — Second Division, [Eule 4 Amendments. These rules cannot be amended except at a regular meeting of the board, and by the consent of a majority of all its members. RULES OF THE MAGISTRATES' COURTS OF THE CITY OF NEW YORK (SECOND DIVISION). KUIE I. Assignments to the several District Courts shall be made to cover a period of at least six months, and provision shall be made for a rotation of magistrates holding said courts. RULE n. Time at Which Courts Shall be Held. The several District Courts shall be opened every day at 9 o'clock a. m., and shall remain open until 4 o'clock p. m., except on Saturdays, Sundays and legal holidays. RULE ni. Who to be in Attendance. There shall be in attendance at such courts, at such times as above specified, all the clerks and assistant clerks assigned thereto, and all proper court officers, the court interpreter and the stenographer, and any violations of the above rules shall be re- ported to the board by the magistrate presiding. RULE IV. Ordei of Business. The business of said court shall be conducted in the following order : 1. Disposition of precinct returns. 2. Hearing returns on warrants and summonses. 3. Hearing and disposition of complaints. 4. Examination involving the commitment of children. 5. Examinations generally. Kule 7] Special Rules of Pbactioe. 587 RULE V. Manner of Keeping Records. The police clerks shall keep, or cause to he kept, in each of the courts the following books : 1. The court record. 2. Examination book 3. Bond book. 4. Book of fines. RTJIE VI. Whenever, in the opinion of a magistrate, he shall deem the same necessary in any complaint or proceeding before him, he shall apply (in -writing, by telegraph, or telephone, through the captain of one of the precincts of his district) to the Board of Police Commissioners for some intelligent and experienced per- son connected with the police force to attend at the court to aid in bringing the facts in such case before such magistrate. RULE vn. Fines. All fines, if the same be paid before full commitment, shall be collected by the police clerk in the district in which said fine was imposed, and by him duly entered on the record, and in a separate book kept in the court for that purpose. iSuch entry in the re- cord shall contain the name of the defendant, offense, amount of fine, when imposed, when paid and amount of payment. The said police clerks shall, each of them, on or before the fifth day of each month, prepare, or cause to !be prepared, a written statement, which shall be verified under oath by said clerks, and shall contain a full, just and true account of all the moneys received hj them as fines or penalties for the preceding month; and said clerks shall, on or before the day last aforesaid, present such statement to the comptroller of the city of New York, and shall pay over to him, in pursuance of section 17 of the Laws of 1873, chapter 538, all moneys so received by them as fines and penalties. Said police clerks shall also take receipts for said moneys, which receipts shall be annexed to a duplicate of said statement, and retained by said clerks as vouchers. 58i8 Magistrates' OoimTa — Second Division. [Bule 12 RULE vm. Warrants. "Warrants stall be issued to peace officers only and in tlie dis- trict in which the offense is charged to have been committed; search warrants, in the district in which the place to be searched is situated. RULE IX. The name of any prisoner discharged and the nature of every charge dismissed shall be entered on the records of the Magis- trate's Court, RTJIE X. Duties of Assistant Clerks, etc The assistant clerks and other assistants at each Magistrate's Coujrt shall obey the reasonable directions of the police clerk assigned to said court,, subject, however, to the proper orders of the magistrate presiding therein and the Board of City Magis- trates. RULE XI. The stenographers assigned for duty to the various courts in the Second Division of the city of New York by the board at the meeting held on the 1st day of February, 1898, may rotate with the magistrates to whom they were on said day assigned. RULE xn. Taking BaiL All bail bonds, recognizances and other obligations demanded or received by any City Magistrate's Court shall be executed and acknowledged before a proper officer by the party intended to be bound thereby, and when executed in the presence of the magis- trate taking them, he shall attest the same by his official signature, and all sureties thereto, before being accepted as sufficient, shall severally subscribe and make oath to an affidavit, in each case naming his residence, which must be within the State of New York, and specifying and locating sufficient property owned by him, and that he is worth a sum at least twice the amount of the obligation assumed by him, over and above all debts and liabilities Rule 2] Special Rules of Peactice. 589 against him; and, if the magistrate has reasonable doubts about the sufficiency of the surety offered, he shall, in addition to such affidavit, make other inquiries or take additional proof as to the identity and responsibility of such surety, and shall in all cases reject any surety or sureties whom in his judgment does not ap- prove as sufficient. EUIE xin. 'No charge, complaint or person brought before one magistrate shall be sent before another, except for adequate cause, to be fully and at once entered upon the record kept by the police clerk and signed by the magistrate. ETIIE XIV. Recognizances to Keep the Peace. All recognizances to keep the peace must be filed with the clerk of the Court of Special Sessions on or before the fifth day of every month, RiriE XV. Amendments. These rules cannot be amended, except at a regular meeting of the board, and by the consent of a majority of all its members. RULES OF THE BOARD OF CITY MAGISTRATES OF THE CITY OF NEW YORK (SECOND DIVISION). EXILE I. The officers of this board shall consist of a president and a secretary. EULE n. It shall be the duty of the president to preside at all the meet- ings of the board. 590 EoAED City Magistrates, Second Division. [Rule 1 RULE ni. The duties of the secretary of said board shall be to keep a full and fair set of minutes of each and every meeting of said Board of City Magistrates, and to make, prepare and present to the said board such annual statements or reports of the business done by each of said city magistrates, as is prescribed in section 14, chap- ter 538, of the Lavs^s of 1873, and in section 1550, of chapter 410, of the Laws of 1882, and also to give the proper notices to the members of all meetings of the board, and such other duties as the board shall direct. RULE IV. A majority of all the members of the board shall constitute a quorum for the transaction of all business. RULE V. Special meetings of the board may be held upon the request, in writing, of three members, but the notice for the same shall be issued at least forty-eight hours before the time for which such meeting is called, and shall state the object of such meeting. No other business shall be transacted at such meeting except upon the unanimous consent of the members present. RULE VI. The officers of the board shall be elected at the last regular meet- ing of the board in December of each year, and shall hold office until the election of their successors. A majority of all the mem- bers of the board shall be necessary to a choice. RULE vn. The order of business at the meetings of the board shall be as follows : 1. Reading of the minutes of the previous meeting. 2. Reports of committees. 3. Motions and resolutions. 4. Unfinished business. 5. Miscellaneous business. Eule 11] Special Rules of Pkactice, 591 RULE VIII. The minutes of the proceedings of the hoard shall at all times be opened for public inspection, under the care of the secretary. RULE IX. Upon the question of the appointment of any clerk or clerks' assistant, the members of the board shall vote as their names are called by the secretary, and the vote of each member shall be re- corded in the minutes, and the majority of the whole board shall be required to appoint a police clerk, clerks' assistant, interpreter, stenographer, and other necessary attendants, and may remove the same, except police clerks, and the secretary shall record the vote of each member of the board so voting. RULE X. 'No assistant clerk, interpreter, or stenographer shall be removed except at a regular meeting of the board, and upon a previous notice of five days, in writing, given to him by the secretary, specifying the cause of his proposed removal, and an opportunity for an explanation by such assistant clerk, interpreter, stenogra- pher, or attache of the court, in presence of the board. The cause of the removal of any such assistant clerk, interpreter, or stenog- rapher shall be noted in the minutes. RULE XI. It shall be the duty of the president to preside at all meetings of the board, and in case he shall not attend at the time appointed for the meeting of the board, tlie secretary shall call the board to order, when a president pro tern, shall be appointed by the board until the appearance of the president. The president shall decide all questions of order, subject to an appeal to the board, and may substitute any other member to preside in his place dur- ing the meeting, or any portion of it, at which the substitution shall be made. 692 BoAED City Magisteates, Second Division. [Enle 16 ETJIE xn. The regular meetings of tbe board shall be held on the last Wednesday of every month, excepting August, at 4 o'clock p. m., provided that vs^hen such last Wednesday in any month shall fall upon a legal holiday such meeting shall be held upon the last Thursday of such month. ETJIE xxin. AH resolutions shall be presented in vs^riting, vs^ith the name of the mover, and when presented they shall be read, but not con- sidered until seconded. BUIE XIV. Every member who shall be present when a question is put shall vote for or against the same, unless excused by the board. The ayes and nays shall be called and entered upon the minutes at the request of any member. EUIE XV. The rules of the Legislative Assembly of the State of N'ew York shall govern the proceedings of this board, so far as the same are applicable and not inconsistent with any of the regular rules of the board. RULE XVI. There shall be a standing committee, consisting of two magis- trates, to be appointed by the president, to be known as the com- mittee on blanks and forms, and who shall have charge of the preparation of such blanks and forms as may, from time to time, be necessary. Eule 33] Special Rules of Pkactice. 593 Rules of the Court of Claims. RULES OF PRACTICE. General Provisions. 1. Application of rules of Supreme Court. 2. Substitution of attorney. 3. Interpleader, consolidation and new parties. 4. Service of notice by mail. 5. Extensions of time. 6. Discontinuance when counterclaim is pleaded. 7. Settlement and compromise. 8. Size of paper used for claims and briefs. 9. Use of number of claim. 10. Folioing motion papers. 11. Date of issue. 12. Calendar. 13. Duties of the clerk. 16. Notice of intention to file claim. 17. Appointment of guardian ad litem. Pleadings Generally. 19. Porms for pleading. 20. Amendment of pleadings. 21. Filing amended pleadings. 22. Service of amended pleadings. Statement of Claim. 24. Statement of claim generally. 25. Statement in claim of particulars of damage. 26. Statement in claim as to former audit or determination. 27. Statement in claim as to assignments. 28. Statement of claim under special statute. 29. Statement of claim in cases of appropriations. 30. Map and rough drawings to accompany claims. 31. Abstract of title to accompany claims in cases of per- manent appropriations. Rescinded. 32. Subscription of claim. 33. Verification of claim. 594 State Couet of Claims. [Eule C8 34. Printing claims. 35. Folioing claims. 36. Filing of claim. 37. Filing copies of claim. 38. Dismissal of claim by Attorney-General. Pleadings by State. 40. Pleadings by State. 41. Allegations in claim deemed denied by State without pleading. 42. Verification of counterclaim by State. 43. Service of counterclaim. 44. Printing counterclaim. 45. Filing counterclaim. 46. Folioing counterclaim. 47. Dismissal of counterclaim by claimant. Claimant's Reply. 49. Counterclaim admitted unless reply filed. 50. Reply to counterclaim. 51. Verification of reply. 52. Printing and filing reply. 53. Folioing replies. Notices of Trial and Issue. 55. Notices of trial for regular terms. 56. Notes of issue for regular terms. 57. Notices for special terms. Trial. 61. Subpoenas. 62. Attachment to compel obedience to subpoenas. 63. Punishment for contempt. 64. Discovery. 65. Hearing of claims generally. 66. Hearing of claims placed upon the calendar by Attorney- General. 67. Dismissal of claims. 68. Proofs. RuJe 4] Special Rules of Pbactice. 695 69. Eeferee to take proofs. 70. Taking testimony out of court. 71. Briefs. 72. Form of requests to find. Judgment. 73. Judgments generally. 74. Form of judgment. 75. Judgment of dismissal for want of prosecution. 76. Judgment-roll after hearing. 77. Costs, fees and disbursements. Appeals. 80. Appeals generally. 81. Case on appeal by stipulation. 82. Settlement and filing case on appeal. 83. Abandonment of case on appeal. 84. Proceedings upon abandonment of case on appeal. 85. Remittitur on appeal. 86. Order upon remittitur. 87. Costs of appeal. Satisfaction of Judgment. 90. Satisfaction of judgment. GENERAL PROVISIONS. 1. Application of rules and practice of Supreme Court. — Ex- cept as otherwise provided in these rules or the Code of Civil Procdure the practice in this court shall be the same as in the •Supreme Court. (Code of Civil Procedure, § 265.) 3. Substitution of attorney. — Written notice of substitution of attorney shall be filed with the clerk and notice thereof served on the Attorney-General. 3. Interpleader, consolidation and new parties. — For provi- sions relating to interpleader, consolidation and new parties, see Code of Civil Procedure, § 281. 4. Service of notice hy mail. — Any notice required to be served by the rules may be served by mail. If upon the claimant ^96 State Court of Claims. [Eiile 13 or his attorney, by directing the same to Bim at the post-office address indorsed upon the claim, filed. 5. Extension of time. — The time within which an act is re- quired to be done, excepting the time to file claims or to appeal, may be extended by order of the court or a judge thereof. 6. Disconthmwnce where counterclaim is pleaded. — Where a counterclaim is pleaded, the claimant cannot discontinue except with the consent of the court. 7. Settlement and compromise. — For provisions relating to the settlement and compromising of canal claims, see Code of Civil Procedure, § 270. 8. Size of paper used for claims and other papers. — Where a claim or other paper in a case is typewritten the size of the paper used shall be substantially 8 inches by 13 inches and when printed substantially 8 inches by 10% inches. 9. Use of number of claim. — The number given a claim by the clerk shall be used by the claimant or his attorney upon all papers in the case. 10. Polioing motion papers. — All motion papers exceeding two folios in length shall be folioed. 11. Date of issue. — The date of issue is the date of filing the claim, except that a claim passed on the call of the calendar shall take as its date of issue the date of its passage. 12. Calendar. — 1. Unless otherwise directed by the court, the clerk shall make a calendar of claims to be heard for each regu- lar or special term. 2. The clerk shall place upon the calendar (1) claims that have been properly noticed and in which notes of issue have been filed; (2) claims which have been stipulated on the calendar; (3) claims which may have been ordered thereon by the court; and (4) those designated by the Attorney-General in a written notice filed with the clerk before the calendar is made up. 13. Duties of the Clerl: — 1. The clerk shall not receive or file any claim, counterclaim or reply unless the same is verified as prescribed in the rules. 2. The clerk shall not receive or file a claim for a permanent appropriation unless the claim contains a duplicate of the certified map containing description of appro- priation served on claimant. 3. Each claim shall be numbered by the clerk in the order of its filing, and an amended or supple- Kule 19] Special Kules of Pbactice. 597 mental claim shall take the same number as the original claim. 4. The time when an amendment to a pleading is allowed shall be entered by the clerk upon the minutes. 5. The clerk shall deliver three copies of each claim to the Attorney-General or his deputy, and shall retain the remaining copies for the use of the court. 6. The clerk shall notify the claimant or his attorney of the date of filing a claim and of its number. 7. The clerk shall mail a copy of the calendar at least ten days before the beginning of the session, to each claimant whose claim appears thereon, or to his attorney. 8. The clerk shall keep on file in his office each judgment-roll. 9. The clerk shall not file a case on appeal or case and exceptions, unless the same is ordered filed as herein provided. 10. The clerk shall enter all substitutions of attorneys properly made. (As amended September ;)0', 1909.) 16. Notice of intention to file claim. — For provisions relating to notice of intention to file claim see Code Civil Procedure, § 261. 17. Appointment of guardian ad litem. — A guardian ad litem may be appointed by the court, or one of the judges thereof, as provided by the rules of practice of the Supreme Court. PLEADINGS GENERALLY. 19. Forms for pleading. — The following forms are submitted as models for pleadings : FORM A. Claim for Damages for Negligence. STATE OP NEW YORK — Court of Claims. John Doe against State of New York. 1. This claim is for negligence of the State in constructing and maintaining a bridge known as the Newport bridge over the old Erie canal in the village of Warners, N. Y., and particularly in failing to provide said bridge with suitable railings and to light the same. 598 State Couet of Claims. [Eule 19 2. On December 22, 1905, without any negligence on his part, claimant fell off the west side of said bridge about the middle thereof and received the following injuries: (State in detail injuries received.) 3. This claim has not been assigned and has not been submitted to any other tribunal or ofBcer for audit or determination. 4. This claim was filed within two years and a notice of intention to file within six months after the claim accrued as required by law. 5. Attached is a small rough drawing of the place of the accident. 6. The particulars of claimant's damages are as follows: Dr. Bell's bill for services $50 00 Mary Smith's bill for nursing 40 00 St. Mary's Hospital expenses 50 00 Medicines 25 00 Personal suffering, etc 2, 000' 00 Total $2, 165 00 State of Xew Yobk,"| County of Monroe, Iss. : City of Rochester, J John Doe, being diuly sworn, says : I am the claimant above named ; I have read the foregoing claim and know its contents; the same is true to my knowledge, except as to the matters therein stated to be alleged on informa- tion and belief, and as to those matters I believe it to be true. John Doe. Sworn to before me, this 3d day of March, 1906. John Smith, Commissioner of Deeds (or other officer authorized to take affidavits). FORM B. Indorsement on Back of Claim. STATE OF NEW YORK, Court of Claims. JOHN DOE STATE OF NEW YORK. CLAIM Richard Roe, Attorney for Claimant, 3 White Building, Rochester, N. Y. Eule 19] Special Rules of Peactioe. 699 FORM c. CUiim for Permanent Appropriation, STATE OF NEW YORK— Coukt of Claims. John Doe against State of New York. 1. This claim is for permanent appropriation of land by the State for the Barge canal pursuant to Laws of 1903, chapter 147, and a notice of such appropriation served on claimant, December 26, 1905. 2. The premises appropriated are described as follows: (Here insert description in detail.) 3. Attached hereto as a part of the claim is a duplicate of the certified map containing description of appropriation served on claimant. 4. This claim has not been assigned and has not been submitted to any other tribunal or officer for audit or determination. 5. The claim is filed for damages arising within two years after the cause of action accrued. 6. The particulars of claimant's damages are as follows: 3 acres of land appropriated $2, 000 15 acres of remaining land damaged 1, 000 Total $3, 000 (For form of verification see Form A, and for indorsement see Form B.) FORM D. Claim for Temporary Appropriation. STATE OF NEW YORK — Court of Claims. John Doe against State of New York. 1. This claim is for the temporary appropriation from December 25, 1905, to December 25, 1906, of land by the State in connection with the construc- tion of the Barge canal, by the placing of earth, stone and timber thereon. 600 State Cotjet op Claims. [Eule 19 2. The premises owned by claimant are situated in the town of Perinton, Monroe county, New York, consist of ten acres and the portion appropriated consists of two acres. 3. This claim has not been assigned and has not been submitted to any other tribunal or officer fox audit or determination. 4. Attached hereto is a rough sketch of the premises owned by claimant and the portion appropriated. 5. The claim was filed within two years after the cause of action accrued. 6. The particulars of claimant's damages are as follows: 10 p«ar trees destroyed at $5 each $50 00 60 rods of fence at $1 per rod 60 00 2 acres of land, use thereof 10 00 Total .$120 00 (For form of verification see Form A, and for indorsement see Form B.) FORM E. Ctaim for Damages for Leakage of Canal. STATE OF NEW YORK — Coubt op Claims. John Doe against State of New York. 1. This claim is for the destruction of crops July IS, 1905, due to leakage from the Erie canal by reason of the negligent construction and maintenance of the banks thereof. 2. The premises owned by claimant are situated in the town of Perinton, Monroe county, New York, consist of fifty acres and the portion affected by the negligence of the State is about three acres lying adjacent to the canal. 3. This claim has not Ijeen assigned and has not been submitted to any other tribunal or officer for audit or determination. 4. Attached hereto is a small rough sketch of the premises owned by claimant and the portion damaged. 5. This claim Avas filed within two years and a notice of intention to file the claim was filed within six months after the claim accrued as required by law. Kiile 29'] Special Rules of Peactice. 601 6. The particulars of claimant's damages are as follows : 20 acres of com totally destroyed at $30 an acre $600 10 acres of potatoes partially destroyed at $60 an acre 600 20 acres of meadow at $10 an acre 200 Total $1, 400 (For form of verification see Form A, and for indorsement see Form B.) 20. Amendments of pleadings. — Pleadings may be amended at any time upon the consent of the court. 21. Filing amended pleadings. — The rules regulating the fil- ing of original pleadings shall apply to amended pleadings, ex- cept where the amendment is allowed during the course of the trial. 22. Service of amended pleadings. — The rules regulating the service of original pleadings shall apply to amended pleadings, except whsre the amendment is allowed during the course of the trial. STATEMENT OF CLAIM. 24. Statement of claim generally. — The claim shall state con- cisely the facts constituting the cause of aetioai. 25. Statement in claim of particulars of damage. — The claim shall state the particulars of claimant's damage showing in detail each item claimed and the amount of such item. 2'6. Statement in claim as to former audit or determiiudinn. — The claim shall state whether it has heen submitted by law to any other tribunal or officer for audit or determination. 27. Statement in claim as to assignments. — The claim must state whether or not the claim has been assigned, and if assigned the name and residence of each person interested in the claim. 28. Statement of claim under special statute. — When a claim is filed under a special statute, the statute must be set out in full in the claim. 29. Statement of claim in cases of appropriations. — A claim for permanent or temporary appropriation must contain a specific description of the property, showing its location and quantity. 602 State Couet of Claims. [Rule 41 30. Maps and rough drawings to accompany claims. — In eases of permanent appropriation a duplicate of the certified map con- taining description of appropriation served on claimant must ac- company the claim and copies of the claim and in all other cases a small rough sketch or drawing showing the location of the prem- ises or place forming the basis of the claim. 31. Rescinded .September 30, 1909. 32. Subscription of claim. — The claim must be signed by the claimant or his attorney giving his address. 33. Verification of claim^ — The claim must be verified in the same manner as pleadings in the Supreme Court. 34. Printing claims. — The claim shall be printed except that where the amount claimed does not exceed $200, typewritten copies may be furnished. 35. Folioing claims. — All claims exceeding two folios in length must be folioed. 36. Filing of claim. — The filing of a claim consists in deliver- ing the same, during office hours, to the clerk at his office in the Capitol at Albany, or in his absence to some person in charge of the office. 37. Filing copies of claim. — The claimant shall at the time of filing his claim, or within ten days thereafter, deliver to the clerk twelve copies of his claim. 38. Dismissal of claim by Attorney-General. — The Attorney- General may, upon ten days' notice, move to dismiss a claim on the ground that the facts stated in the claim do not constitute a cause of action, specifying the alleged defects in the claim. PLEADINGS BY STATE. 40. Pleadings by State. — The State is not required to answer a claim but when a counterclaim is necessary must plead and file the counterclaim in conformity with the provisions relating to claims so far as applicable. 41. Allegaiions in claim deemed denied by State without pleading. — All allegations in a claim are treated on the trial as denied bv the State. Eule 55] Special Kules of Practice. 603 42. Verification of counterclaim hy State. — A counterclaim by the State must be verified by the Attorney-General, or one of his deputies. 43. Service of counterclaim. — Except by consent of the court a counterclaim must be served upon the claimant or his attorney at least ten days before the beginning of the term at which the case is to be tried. 44. Pnnting counterclaim. — The provisions relating to print- ing claims apply to a counterclaim. 45. Filing counterclaim. — Except by the consent of the court a counterclaim shall be filed at least ten days before the beginning of the term at which the case is to be tried. The provisions re- lating to filing copies of claims apply to a counterclaim. 46. Folioing counterclaims. — A counterclaim exceeding two folios in length must be folioed. 47. Dismissal of counterclaim hy claimant. — A counterclaim may be dismissed on motion of the claimant for the like cause and upon like notice to the Attorney-General as provided with refer- ence to the dismissal of claims. CLAIMANT'S REPLY. 49. Counterclaim admitted unless reply filed. — A counterclaim is admitted unless a reply is filed and served as herein prescribed. 50. Beply to counterclaim. — Except by the consent of the court a reply to a counterclaim must be filed within twenty days after service thereof, but no reply need be made to a counterclaim served within ten days of the beginning of the term at which the claim is to be heard. 51. Verification of reply. — A reply must be verified in the same manner as pleadings in the Supreme Court. 52. Printing and filing reply. — The provisions relating to printing claims and filing copies apply to a reply. 53. Folioing replies. — A reply exceeding two folios in length must be folioed. NOTICES OF TRIAL AND ISSUE. 55. Notices of trial for regular terms. — Twenty days' notice of trial must be given by mail to the Attorney-General for regular terms. 604: State Couet of Claims. [Kule G8 56. Notes of issue for regular terms. — Notes of issue for reg- ular terms must be filed with the clerk thirty days before the opening of the term. 5Y. Notice for special terms. — C'laims placed on the calemdar for special terms by the court shall be deemed to have been noticed by both parties. TRIALS. &!. Subpoenas-. — In any claim pending before this court, either party may issue to and serve subpcenaes upon witnesses to appear and testify, and to produce books and papers, as the same are issued and served in actions in the Supreme Court. G2:. Attachment to compel ohedieoice to suhpcenas. — Either party may apply for, and obtain from the court, an attachment to compel obedience to subpoenas. 63. Punishment for contempt. — Either party may apply to the court for punishment for contempt as in actions in the Sujweme Court. 64. Discovery. — Either party to a pending claim may be com- pelled, sufficient ground being shown therefor, (1) To give an in- spection of any book, document, map, plan or other paper in his possession or under his control relating to the merits of the ease, or (2) To grant leave to make a copy thereof or (0 ) To make and deliver a copy thereof or (4) To produce the same in court. 65. Hearing of claims generally. — ^A claim may be brought to hearing at any regular term by the claimant, upon sei-vice of notice of trial and filing of note of issue as herein provided. 66. Hearing of claims placed upon the calendar by Attorney- General. — The Attorney-General may, without further notice, move the hearing of .a claim designated by him to be placed upon the calendar as herein provided. 67. Dismissal of claim. — The Attorney-General may, without further notice, move the dismissal of a claim designated by him to be placed upon the calendar. 68. Proofs.— A claim may be submitted upon proofs or upon agreed facts. Rule T2] Special Rules of Pkactick. 6i05 69. Referee to talce proofs. — The court may in any pending claim, upon stipulation, or upon sufficient cause shown, appoint a referee to take proofs and report to the court. 70. Taking testimony out of court. — ^The court or a judge thereof may upon due notice to interested parties and upon suffi- cient grounds at any time make an order for the examination out of court of any person in an action or prospective action. The proceedings subsequent to the making of such an order shall he the same as in the Supreme Court. 71. Briefs.— Five copies of briefs which must be printed un- less otherwise directed by the court, must be filed with the clerk within the time allowed by the court. 72. Form of requests to find. — When requests to find are sub- mitted the following form is recommended although not required. FORM OF REQUESTS TO FIND. Coimr OF Claims. John Doe, Claimant, against The State of New York. - No. 6359. The claimant respectfully requests the court to find as follows: Findings of Fact. Ist. In the years 1904 and 1905, the claimant was the owner in fee simple and in possession of a farm situate partly in the village of Springwater and wholly in the town of Springwater, Monroe county, N. Y., comprising 122.42 acres. 2d. The claimant continued to own and possess 101.53 acres thereof down to March 13, 190G. the time of the filing of claimant's claim. 3d. On the 21st day of March, 1906, pursuant to the authority of the Barge Canal Act, chapter 147 of the 'Laws of 1903, the State appropriated for pur- poses of said canal, out of claimant's farm, 20.838 acres, particularly de- scribed in his claim. 4th. Upon said land so appropriated were farm buildings, consisting of a farm dwelling-house, two barns, a shop, poultry-house, well and cistern. 5th. Of the land appropriated a portion fronted upon a public street in the village of Springwater, in which was installed the village light and water 606 State Coukt of Claims. [Rule 72 system and in front of which the sidewalk was graded. Such frontage was about 950 feet upon the street, and was available and salable for building lots. References : Testimony of Eli Cochran, pp. 91, 96. Testimony of Mr. Randolph, p. 110. These lots are very desirable. Cochran, pp. 90, 91. The vicinity was closely built up. Doe, p. 14; Randolph, pp. 109, 117-118. Lots were readily salable. Randolph, pp. 117-118. These lots should have been taken into account in appraising the prop- erty and yet none of the State's witnesses as to value took any account of them in arriving at their conclusions, but treated the whole 20.838 acres taken simply as farm land. 6th. Upon the land taken were deposits of moulding sand extending over an area of about twelve acres, and of an average depth of one and one-half feet. References : Testimony of Doe, pp. 27-8; 31-2; 35, 36. Testimony of Cochran, p. 145. 7th. The moulding sand in the soil on the land, at the time of the appro- priation, was reasonably wortn thirty cents per cubic yard. References : Testimony of Doe, pp. 27, 28. Testimony of Cochran, pp. 143-4. It could be removed with practically no damage to the remaining land, except the use of a small area while it was being removed. Testimony of Doe, pp. 29, 144. Claimant had sold $1,024.30 worth of this sand in two years from one- half acre, just preceding the appropriation. Testimony of Doe, p. 30. The amount and value of this moulding sand upon the land taken is nowhere disputed by the State. Mr. Sanford concedes it to be a valuable asset and readily salable (p. 190), yet he did not at all consider it in arriving at his estimate of the value of the premises, nor did any of the State's experts, but they estimated the land taken solely for ordinary farming purposes. 8th. The appropriation of the 20.838 acres left claimant's remaining land 101.582 acres, without buildings, water or access to any public highway, in any manner, and thereby depreciated the 101.582 acres in value to the amount of $10,052. References : The claimant's witnesses place this depreciation as follows: Value before ^'alue after Depreeia- Witness. taking. taking. tion. Roach $10, OOO $5, 000 $5, 000 Tarbox 20, 000 5, 000 15. 000 Doran 12. 097 75 2, 539 75 10, 158 Rule 72] Special Eules of Peactice. 6-07 The state's witness, Filkins, placed the value of the remaining land after the appropriation at $10 per acre (p. 198). Dobson put it at $25 per acre (p. 202). Scott put it at $25 per acre (p. 156). ■9th. The reasonable value of the 20.838 acres of claimant's land permanently appropriated by the State was $23,000. References : Testimony of Doe, p. 55. Considering the various elements of value clearly established and prac- tically undisputed by the State, viz.: Buildings $10, 332 Building lots 3, 000 Moulding sand 8, 625 16% acres garden 3, 300 $25, 284 Mr. Doe's estimate is fairly established. The fact that the farm cost Mr. Doe $24,575 (pp. 78, 86), and that he has been at such pains to improve it supports this view. As to the general damagei caused Mr. Doe by this appropriation, the fol- lowing is a table of values given by all the witnesses: Value before appropria- Witness. tion. Doe $35, 000 Cochran 15, 302 Scott 13, 250 Sanford 11, 600 Truax 12, 500 Dobson 12, 000 Conclusions of Law. The claimant is entitled to an award against the State by reason of the facts alleged in his claim, in the sum of $28,396, together with interest theroon from the 21st day of March, 1905. Samuel Woethington, Attorney for Claimant. (Addied September 30, 1909.) Value after. Damage. $5,000 $30, 000 2,500 12, 802 2,500 10,750 4,600 7,000 1,000 11,500 2, 500 9,500 ermission of the court, they are to be placed upon the day calendar after the causes undisposed of already upon such calendar and only upon Kule 39]' Local Exiles of Pkactice. 631 notice, filed with the clerk before 4 o'clock of the preceding day, by a party who has noticed siaid cause for trial. Seveni;h. The number of causes for the day calendar shall always be under the direction of the presiding justice, and nothing in this order contained is to interfere with the moving of preferred causes or the taking or inquests. DELAWARE COUNTY — SUPREME COURT. RUIE XX. It shall be the duty of the attorney, by whom the copy pleadings shall be furnished for the us© of the court on a trial, to plainly designate, on each pleading, the part or parts thereof claimed to be admitted or controverted by the succeeding pleadings. EXTRACT FROM RULE XXXIX. Every cause placed on the calendar of a General Term, Oircuit, or Special Term for the trial of equity cases, sihall :be moved for argument or trial when reached in its order, and shall not be reserved, or put over, except by consent of the court; and, if passed without being so reserved, or put over, it shall (be entered on all subsequent calendars as of the date when passed, and no term fee dhall be taxed therein for any subsequent term. The clerk is directed to enter in his minutes the title of every cause passed, the date when passed, and to keep in his office a list of passed causes ; and whenever a passed cause is placed upon a calendar, the word " Passed," followed by the date when passed, shall ,be entered under the date of issue. If two or more causes are passed upon the same day, the right to priority as between them on subsequent calendars shall be determined by the date of issue. The clerk is directed to print in every calendar — Rule XX — • the foregoing extract from Rule XXXIX — and the foregoing Tulfe for carrying into effect Rule XXXIX, which is this 22d day of March, 1881, adopted, and ordered entered in the minutes of the court. 632 Ddlawaeb County — Supeemb Couet. [Rule 39 Day Calendar Rules. Special Terms for the hearing of ex parte applications and mo- tions on consent will be held at Supreme Court chambers at Bing- hamton, Oneonta, Canastota and Elmira on Saturday of every week when the resident justice is not otherwise engaged, except July and August. No motion will be heard at Special Terms held with the Trial Terms except in cases triable in the county where the Special Term is held or triable in an adjoining county not within the district J or upon order to show cause granted by one of the justices of the Supreme Court residing in the Sixth Judicial District. The calendars for Trial and Special Terms shall contain all cases, those triable with and those triable without a jury. Notes of issue filed shall state whether the action be triable with or without a jury. Those cases triable with a jury shall be first placed upon the calendar and those triable without a jury shall follow. The call of the calendar will be governed by the day calendar rules, which follow: First. The first ten causes upon the calendar shall constitute the day calendar for the first day, and each day thereafter the same shall be made up of ten causes from those not disposed of on the day calendar, and causes from the general calendar in which a request to place upon the day calendar, stating the num- ber of the cause upon the general calendar, shall be filed with the clerk before 4 o'clock p. m., the previous day, by an attorney who has noticed the cause for trial, and such causes shall be placed on the day calendar according to their priority upon the general calendar. 'Second. Causes upon the day calendar, including those upon the first day calendar not disposed of, shall remain upon and retain their priority on the day calendar until finally disposed of. Third. The clerk shall make up the day calendar at 4 o'clock each day. Fourth. Causes placed on the calendar must be disposed of when reached and will not be reserved except for special reasons arising after they have been placed upon such day calendar and satisfactory to the court. And after a case has been put upon the Rule 1] Local Eules of Peactice. 633 day calendar no motion will be entertained to put the cause over tlie term except for causes arising after the cause is placed upon such day calendar. Fifth. All causes not placed on the day calendar will be con- sidered as passed down to the last cause, which shall be regularly placed upon the day calendar unless reserved by the court, or as hereinafter provided. Sixth. Attorneys shall not reserve causes generally, nor re- serve them to a day certain, except upon application made to and approved by the court, before such cause shall be placed upon the day calendar. When reserved to a day certain by permission of the, court, they are to be placed upon the day calendar after the causes undisposed of already upon such calendar and only upon notice filed with the clerk before 4 o'clock of the preceding day, by a party who has noticed said cause for trial. Seventh. The number of causes for the day calendar shall always be under the direction of the presiding justice, and noth- ing in this order contained is to interfere with the taking of inquests. ERIE COUNTY. Rules of the Supreme Court, Eighth Judicial District. The following rules are hereby established for the Supreme Court in Erie county, to take effect on the fijst day of January, 1909, excepting the provisions thereof with respect to the day calendar for the first day of the first term to be held in 1909, which shall take effect at the time therein prescribed for prepar- ing such calendars and thereupon all former rules shall be deemed abrogated. Trial Terms for Jury Cases. RULE I. Terms. There shall be three terms per annum for the trial of civil causes, and each term shall be held in three parts which shall be known as Parts I, II and III. These terms shall commence on the first Monday of January and April and first Tuesday after the first Monday of September, respectively, and the first and second terms shall continue for twelve weeks each and the third for sixteen weeks. 634 Eeie Ooubttt — Supeeme Couet. [Rule 4 Ttere shall be five terms per annum for the trial of criminal causes to be known as Part IV. These terms shall commence on the first Monday of February, April, June, and November, and on the first Tuesday after the first Monday of September, respect- ively, and shall continue four weeks if the busings warrant EULE n. Grand Jury. A grand jury shall be drawn for each term, far the trial of criminal causes as herein designated. RULE ni. Notes of Issue. ISTotes of issue must specify the particular nature of and the object of the action as required by -section 977 of the Code of Civil Procedure, and the clerk shall not file a note of issue unless it complies with this provision. RULE rv. Calendars of Civil Causes. There shall be one general calendar and one trial calendar. The general calendar shall remain on file in the office of the county clerk and shall not be printed or used excepting for the purpose of correcting the trial calendar until the trial calendar is exhausted. It shall consist of all civil causes, triable by jury, now undisposed of in this county, which have been duly noticed for trial and in which notes of issue have been duly filed and such additional causes as may from time to time be regularly noticed for trial and in which notes of issue shall be duly filed. Causes shall be placed upon such calendar according to the date of issue, except that when at any term a case is passed, or sent to the foot of the calendar, the date when the same shall be so passed, or sent to the foot of the calendar, shall thereafter be regarded as the date of issue of such cause in determining its position on any calendar. There shall be a trial calendar for each term which shall consist of — (1) All causes upon the general calendar which have not been upon the trial calendar more than one year previous to the end Hule 7] Local Rules of Peactick 635 of the last term ; provided, however, that a cause properly on the trial calendar shall remain thereon until the end of the year un- less tried or otherwise disposed of by order of the court. (2) All other causes upon the general calendar in which either party shall file a notice with the clerk at least twelve days before the commencement of the term that the cause will be moved for trial when reached. Causes shall appear on th© trial calendar according to the date of issue except as herein otherwise provided. Causes on the gen- eral calendar but not on the trial calendar may be moved for trial after all causes on the trial calendar shall have been disposed of, but not before. RULE V. Printing Calendar. The clerk shall prepare and cause to be printed for each term a sufficient number of copies of the trial calendar for the ac- commodation of the court and bar. RULE VI. Division of Calendar. The calendar as thus printed shall be deemed divided and as- signed to the respective parts as follows : The first hundred and each successive third hundred causes thereafter to Part I, the second hundred and each successive third hundred causes there- after to Part II, and the third hundred and each successive third hundred causes thereafter to Part III. In correcting the calendar number of a cause, or in giving a preferred or short cause a new position on the calendar, it shall remain in the part to which it has been assigned by Eule VI, and in rearranging its position or order reference shall be had only to those causes which are assigned to th© same part with it. RULE vn. Day Calendar. There shall be a day calendar which shall consist of thirty-two causes for each part, the first eight of which, as ihe calendar stands .at the close of court on each day, exclusive of the case on trial, shall be knovm as ready causes and shall be subject to be 6i3!6 Eeie Cotjntt — Supeeme Coukt. [Kule 7 called for trial at any time thereafter when reached in their order and when so called no excuse for delay or .postponement which was known or could have been ascertained in the exercise of due dili- gence before the cause became one of the firat eight on the day calendar shall be accepted ; but if such an excuse be presented by either party, the cause may be further held, restored to the trial calendar or marked jover the term on such terms as may be im- posed by the court. If a cause be not moved for trial when reached on the day calendar, it shall be passed and ordered to the foot of the trial calendar. The remaining twenty-four causes on the day calendar shall be known as held causes and shall be deemed held until they respec- tively fall within the first eight at the close of any day, as herein provided. After a cause has been moved' onto the day calendar, either party may, at any time before it becomes a ready cause, apply to the court by consent or on such notice as the court may prescribe, and on good cause shown arising after it was so moved, to have it further held, restored to the trial calendar or put over the term, and a party who did not move it onto the day calendar may, within the same time, likewise apply, on good cause shown existing at the time it was so moved, but at that time unknown to the party mak- ing the application or arising after, to have it further held, re- stored to the trial calendar or put over the term, and the court may make such order thereon and on such terms as justice requires. In making up the day calendar, causes shall not be called sepa- rately, excepting as herein otherwise provided, but the justice pre- siding on the first call will invite the moving of preferred causes and if a sufiicient number of preferred causes for a day calendar be not obtained, then the moving of short causes vrill be invited, and if a sufficient day calendar shall not be thus obtained the justice presiding will inquire whether any of the first fifty causes on his part of the trial calendar are moved, and so on by fifties until a sufficient day calendar be obtained. Each succeeding cal- endar call shall be resumed from the highest number reached at the preceding call, and no cause bearing a lower number than the high- est number reached at the preceding call shall be again called until Eule 10] Local Etjles of Practice. 637 the entire calendar in that part is exhausted unless it shall have heen reserved until a later day ; but a cause bearing a lower num- ber and reserved to a date later than the preceding call may be moved on the first call on or after the date to which it has been reserved. After an opportunity to move every cause onto the day calendar shall have been tbus afforded, the same course and order shall be repeated and observed on subsequent calls of the calendar, excepting that preferred and short causes sball lose their right to a preference and shall have only the right to be moved accord- ing to their respective calendar numbers unless moved onto the day calendar at the first opportunity or duly held or reserved until a later day. If at any time a sufficient number of causes for a day calendar be not obtained by following the course herein prracribed the jus- tice presiding may in his discretion give notice that any subse- quent call shall be made by tbe calendar numbers, and, if so, tben every cause not moved when called shall be passed and ordered to the foot of the calendar unless good cause be shown for not mov- ing it. RTjiE vm. Correcting Calendar. On the Thursday preceding the opening of each term, at 2 o'clock p. m., applications for tbe correction of the calendar shall be made to the justice presiding at Special Term, before the com- mencement of the calendar call. RULE IX. Preferences. Motions for preferences under any provision of law must be made immediately after the calendar shall have been corrected. RULE X. Definition of "Over." A cause shall be marked " over," which shall mean over the term, only where a written stipulation to that effect is filed with the clerk or the court so orders at any time on consent or for good cause shown. A cause may be reserved Jor a later day in the term upon written stipulation to that effect filed with the clerk or 638 Eeie County — Supreme Couet. [Rule 14 by order of the court at any time on consent or for good cause shown, and shall be marked accordingly; but a cause shall not be so reserved more than twice. RULE XI. Fiist Day Calendar. 'On the Thursday preceding the opening of each term, at 2 o'clock p. m., the justice presiding in Special Term shall prepare the first day calendar for each part as provided in Rule VII. Causes remaining untried on the last day calendar of the preced- ing term shall have a preference over all other causes in making up the first day calendar. RuiE xn. Su1)sequent Day Calendars. Thereafter from time to time whenever the number of causes on the day calendar of any part, exclusive of the cause on trial, shall be sixteen or less, causes shall be added to complete the day calendar. Such additions shall be made in Part I at 10 a. m., in Part II at 12 m., and in Part III at 2 p. m. RUIE xm. Posting Calendar and Notices of Calendar Calls. The clerk in each part shall post the day calendar for each day and shall also post notice of the time when additions are to be made thereto and shall specify therein the highest number reached on the last call of the calendar. RUIE XIV. Short Causes. A short cause is defined as one which may be fully and fairly tried within two hours. Such causes are entitled to a preference in trial next after the causes entitled to a preference under the Code. Notice of intention to move a cause as a short cause shall be served in writing on the adverse party at least fourteen days before the commencement of the term, or such notice of intention may be indorsed on the notice of trial served. At the time the first day calendars are made up a party who has duly served such Kule 17] Local Eules of Peactice. 639 notice of intention may move the cause as a short cause. Such motion must be based upon the affidavit of the moving party, which shall state that the notice of intention was duly served, the date of the joinder of issue, the nature of the issue, and the facts and circumstances which render it probable that the cause can be tried in two hours. Annexed to such affidavit must be a copy of the pleadings. The affidavit read in opposition to such motion shall set out the facts and circumstances which render it unlikely that the case can be tried in two hours. If the motion be granted, the case shall be entitled to the preference above provided. If the motion be denied, it cannot be renewed without leave of the court. A cause can be moved as a short cause only at the first term for which it is noticed for trial. A cause once designated as a short cause shall remain such until disposed of or until it loses its pref- erence as provided in Kule VII. RULE XV. Transfei of Causes. A justice presiding in either part may, upon request of the justice presiding in another part, transfer to such other part one or more causes for trial, and shall send to another part any cause in which he is disqualified to sit. RULE xvr. If in any year the day herein prescribed for opening court shall be a legal holiday, the court shall open on the next day thereafter. TRIAL TERMS WITHOUT A JURY — EQUITY. RULE xvn. General Calendar. The general calendar shall consist of all cases triable by the court without a jury now undisposed of, and such cases as may from time to time be regularly noticed for trial and note of issue filed as required by section 977 of the Code, and shall be made up in the manner prescribed by Rule IV, and shall remain on file in the office of the county clerk, and shall not be printed. 640 Eeie Cotjntt — Stjpeeme Cottet. [Rule 22 EULE xvni. Trial Calendar. The trial calendar for each term shall be made up in the same manner as is provided by Eule IV for jury terms, and all the provisions of said Rule IV shall apply to the making up of a trial calendar for terms held without a jury. RULE XIX. Trial Calendar — Printing. The clerk shall prepare and cause to be printed the necessary number of copies of the trial calendar at least five days before the commencement of the term as provided in section 977 of the Code. RULE XX. First Day Calendar. 'At 2 o'clock p. m. on Friday, immediately before the commence- ment of each term the justice holding the Special Term for the hearing of motions shall make up a day calendar of ten causes for the first day of the term. Motions for preference under any provision of law must be made before the call has begun. Causes shall be called in the order in which they appear on the trial calendar. The provision of Rule VII with reference to delay or postponement or failure to move a cause for trial when reached on day calendar, also the provision of Rule X, shall apply. RULE XXI. Subsequent Day Calendars. [After the commencement of the term day calendars shall be made up in the manner provided by the presiding justice, and the clerk shall post notice of such order, and shall also post the day calendar for each day. RULE xxn. Trial of Causes on Day Calendar. All the provisions of Rule IX relating to the trial by jury causes shall apply to the trial of causes without a jury. Eule 25] Local Eules of Peactice. 641 SPECIAL TERM FOR MOTIONS. RULE XXIII. When Held. The Special Term for motions shall be held each day of the year except Saturdays and legal holidays and except during the month of August. The court may be adjourned to one or more days in August in the discretion of the justice holding such term in the month of July and ex parte business only shall be heard upon such adjourned days unless the justice presiding shall other- wise direct. Motions may be noticed for any day when said court sits. If a justice for any reason fails to attend such Special Term on any day, all motions noticed for such day shall be deemed held until the next day at which a justice shall attend. RULE XXIV. Matters Heard. At Special Term shall be heard all ex pariie and litigated mo- tions, all special proceedings where an issue of fact is not formally joined by pleadings, all arguments on demurrers, all appeals upon the law from the Municipal Court of Buffalo, and all other mat- ters usually presented at Special Terms. ArgTiments on demurrers and appeals upon the law from the Municipal Court of Buffalo will be heard on Wednesdays of each week, except during the month of August. RTTLE XXV. Entering and Certifying Orders. Attorneys shall furnish the clerk of the Special Term at the time of the decision of any matter by such Special Term with a memorandum of the decision made, and the clerk shall not enter or certify any order unless and until his minutes justify such entry or certificate. 41 642 Ekie Couj^jty — Supeeme Couet, [Eule 27 RTJIE XXVI. Naturalization. All applications of aliens to become citizens of the United States must be beard and final action had thereon at such Special Term at 10 o'clock a. m. on the first Wednesday of each month when said court is regularly in session, which days are hereby designated as stated days for such applications under Act of Congress, approved June 26, 1906. If upon any stated day the calendar of such applications remains undisposed of, the justice presiding may continue the hearing on the following day or any other day of the court to which he shall adjourn the same. If the applicant fails to appear upon the call of the calendar, the application may be dismissed without prejudice to a renewal of the same. RULE xxvn. Application fot Divorce. First. — In all applications made in Erie county for judgment on default of the defendant, in actions for the annulment of a marriage, or the separation or divorce of the parties, the com- plaint, proof of service of the summons, and of defendant's de- fault, shall be first submitted to the clerk of the special term for examination. Second. — After the taking of testimony on the default of the defendant in any action for the annulment of a marriage, or for the divorce of the parties, the proposed findings and interlocutory judgment shall be submitted to the clerk of the court at Special Term. Third. — It shall be the duty of such clerk to examine all papers so submitted, and to cause the same to be made correct in form and, when so made, to submit the same to the justice of this court having in charge the case to which such papers relate. Fourth. — Applications for judgment on default of the de- fendant, in actions for the annulment of a marriage, or the separation or divorce of the parties, will be heard and proofs will be taken on Tuesdays only at 10 o'clock a. m., and 2 o'clock p. m., unless otherwise ordered by the justice presiding. Eule 30'] Local Kules of Peactice. 643 RULE xxvni. Chamber Business. The justice holding Special Term for motions shall attend to all chamber business during his assignment to such Special Term. Applications for chamber orders sent by mail wiU be addressed to the " Justice holding Special Term," Miscellaneous. EULE XXIX. Criers. The crier of each part of the court shall be in attendance promptly at -the hour of opening and closing gf the court, and shall make the required -proclamations. He shall have the im- mediate supervision of the officers in attendance upon the court, and shall assign them to their respective duties. When the court shall adjourn or take a recess, it shall be his duty and the duty of all attendants and officers of the court to see that the public in attendance remain in their seats until the court and jury retire from the. room. It shall also be his duty to designate one or more officers to attend upon the justice presiding when he enters the court room to open court. He shall report to the justice pre- siding all officers who are absent from duty, or who are guilty of any dereliction or fault, and shall at all times during the session of the court be in attendance upon the same, unless excused by the justice presiding. RULE XXX. OfScers. The sheriff shall provide not more than four officers for Part I, and not more than four officers for Part II, not more than three officers for Part III, and not more than six officers for Part IV, to attend the court, unless otherwise ordered by the justice holding the term. These rules shall be printed in every trial calendar hereafter prepared by the clerk of this court. . 644 Eeie County — Supeeme Court. Code and General Rules of Practice. Attention of attorneys is especially directed to the following provisions of the Code and General Rules of Practice and to the special rules of this court. Section 977. Preparation of Calendar. — The clerk must enter the cause upon the calendar according to the date of issue. The clerk must prepare the calendar and have the necessary copies ready for distribution at least five days before the commencement of the term. * * * In the county of Erie when a party has served a notice of trial and filed a note of issue for a term at which the case is not tried it is not necessary for him to serve a new notice of trial or file a new note of issue for a succeeding term ; and the action must remain on the calendar until it is dis- posed of. Section 789. Preference of Certain Actions iy the People. — ■ An action by the people to recover money or property of the State or of a public or governmental interest wrongfully obtained or converted, or to recover damages for such unlawful obtaining or converting, is entitled to a preference over all other business irrespective of its place on the calendar. Section 791. Preference Among Civil Actions. — Civil causes are entitled to a preference among themselves in the following order, viz. : 1. An action brought by or against the People of the State or a State ofiicer, or brought by the people in the relation of a party. 2. An action in which a board of ofiicers exercising statutory powers for the protection of public health or public or private property is a party. * -X- ******* * 5. An action in which an executor or administrator or testa- mentary trustee or an infant or trustee of an infant or a receiver, or the controller of the currency, or a trustee in bankruptcy, or general assignee for the benefit of creditors, or committee of a lunatic, or a creditor of a deceased insolvent debtor suing in be- half of all creditors is the sole plaintiff or sole defendant; an action for the construction of a will, or to determine the validity Local Eules of Practice. 645 of the probate of a will in which the administrator with the will annexed or the executor of the will is joined as plaintiff or de- fendant with other parties. 6. An action for dower when the plaintiff has no other suf- ficient means of support; an action for partition. 7. An action against a corporation or joint stock association issuing bank notes or other circulating medium or by or against a receiver of such corporation or association; an action in which a county or town is sole plaintiff or defendant. 8. An action against a corporation founded upon a note or other evidence of debt for the absolute payment of money; an action upon an undertaking giving an appeal to the court of Appeals. 9. An action against a sheriff in his official capacity, or an action by a sheriff or late sheriff to recover on bond or undertaking given to him in his official capacity. 10. A case entitled to preference by the General Rules of Practice or special order of the court. 11. An action for libel or slander. ********** 13. An action for absolute divorce in which temporary alimony has been granted. Section 793. Preference, Hov} ''Attained. — In the county of Erie party claiming preference must serve on opposite party, with his notice of trial, a notice that an application wdll be made to the court at the opening thereof or at such other time as shall be pre- scribed by the general or special rules of practice for leave to move the same as a preferred cause, and if the right to a prefer- ence depends on facts which do not appear in the pleadings the notice must be accompanied by affidavits showing such facts. Code Sections and General Rules of Practice Relating to Trials. Section 3301. Clerk's Fees. — The clerk is entitled to a fee of one dollar from the party bringing on an action for trial. Section 3313. Jurors' Trial Fee. — A trial juror is entitled to a fee of twenty-five cents for each cause for which he is em- panelled, to be paid by the party noticing the cause for trial; or 646 Eeie County — Supkeme Cotjet. if it is noticed by more than one party, by the party which the court directs to pay it. Section 980. Dismissals and Inquests. — Either party who has served the notice may bring the issue to trial and in the absence of the adverse party, unless the judge holding the term for good cause otherwise directs, may proceed with the cause and take a dismissal of the complaint, or a verdict, decision or judgment, as the case requires. An inquest for want of an affidavit of merits cannot be taken when the answer is verified. Rule 29. Opening of Counsel and Examination of Witnesses and Summing Up. — In the trial of civil causes, unless the justice presiding or the referee shall otherwise direct, each party shall open his case before any evidence is introduced, and, except by special permission of the court, no other opening by either party shall thereafter be permitted. On the trial of issues of fact, one counsel only on each side shall examine or cross-examine a witness, who shall not repeat the an- swer or answers of such witness at the time he shall be under ex- amination. One counsel only on each side shall sum up the cause, and he shall not occupy more than one hour, and the testi- mony, if taken down in writing, shall be written by some person other than the examining counsel; but the judge who holds the court may otherwise order, or dispense with this requirement. While addressing the court, examining witnesses or summing up, counsel shall stand. Section 981. Pleadings to he Furnished Court. — When the issue is brought to trial by the plaintiff, he must furnish the court with copies of the summons and pleadings and of the offer, if any has been made. When the issue is brought to trial by the defendant and the plaintiff does not furnish these papers, they must be furnished by the defendant. Bute 19. MarJcing Pleadings. — It shall be the duty of the attorney by whom the copy pleadings shall be furnished for the use of the court in a trial to plainly designate on each pleading the part or parts thereof claimed to be admitted or controverted by the succeeding pleadings. Eule 4] Local Rules of Peactioe. 647 ERIE COUNTY — COUNTY COURT. (Adopted January 20, 1904.) ETJLE I. In all actions brought in the County Court, as a court of orig- inal jurisdiction the general rules of practice adopted by the Supreme Court shall 'be followed as far as the same are applicable. EULE n. Terms of this court for the hearing of nonenumerated motions will he held at Room No. 21, at the City and iCounty Hall, in the city of Buffalo, every morning commencing at 10 o'clock, excepting during a regular term of the court, when a jury is in attendance, and also excepting Saturdays, legal holidays and during the month of August; During a regular term of the court attended by a jury, nonenumerated motions will be heard each morning from 9 :30 until 10 o'clock, and at the adjournment of the court for noon hour. Contested motions will be heard on Monday mornings only, except as may be otherwise directed by an order to show cause. Applications for ex parte orders will not be enter- tained during the trial of causes with a jury; such applications must be made before the jurors are called in the morning or at the time they are excused at noon ; but may be made by delivering all papers to the clerk of the court in attendance, and the same will be considered during intermission and then handed to the clerk to be delivered to parties interested. RULE in. At 2 o'clock on the first day of each term of said court, the general calendar wiU be called for the purpose of fixing days when causes shall be placed during said term upon the day calen- dar, and at 2 o'clock on each day the clerk will make up from such causes a day calendar of ten causes for the next succeeding day. RULE rv. Cases not moved when called upon the general or day calen- dar may be dismissed upon the production and filing of proper proof for that purpose. If not dismissed, or reserved for a future day, such causes will be passed for the term. 648 Erie County — County Court. [Rule 2i RULE V. Causes not moved or reserved upon the call of the general calendar, for three successive terms, will, be, by order of the court, stricken therefrom, to be restored to the calendar only on motion. RULE VI. When causes are placed upon the day calendar they will retain their places upon the same until they are tried or otherwise dis- posed of. RULE vn. A party who fails to file a note of issue in any cause with the county clerk will not be allowed to move such cause upon the day calendar or control its disposition upon the general calendar ; but when such cause is placed on day calendar by party entitled so to do, the other party may have same control over the cause as if he had filed note of issue, providing he has filed the proper notice of trial. But in case he has failed to serve notice of trial, he can only appear and participate in the trial whenever it is moved for tri:.l by the party who has served the proper notice. ERIE COUNTY — SURROGATE'S COURT. The attention of attorneys is called to the following rules, es- tablished to regulate the practice in this court, to take effect Feb- ruary 15, 1897: RULE L Due proof of the service of a citation must be filed with the clerk of the court, not later than 9 o'clock of the day on which the citation is returnable, so that the clerk may certify to the court that the service is in all respects regular; otherwise, the proceed- ing will not be heard on that day. RULE n. All proceedings wherein residents of the city of BufEaio or their attorneys appear will be first called at the opening of the Rule 7] Local Eules of Piuctice. 649 court, each day. Proceedings wherein residents of the towns or their attorneys appear, thereafter. RULE m. Appearances by or on behalf of a party against whom citations have been issued and not served must be made by filing with the clerk a written notice of appearance. RULE IV. Persons not named in citation, but who claim to be interested in a proceeding and wish to intervene therein, must file a similar notice of appearance, together with an afiidavit or petition show- ing in what way they are interested in such proceeding. RULE V. Except when otherwise expressly prescribed by statute, all peti- tions, answers, objections and other pleadings shall be in writing and verified, and shall contain a plain and concise statement of the facts constituting the party's claim, objection or defense, and a demand of the order, decree or other relief to which such party considers himself entitled. RULE VI. No special guardian to represent the interests of an infant in any proceeding shall be appointed on the nomination of a pro- ponent or accounting party, or his attorney. No transfer tax appraisers will be appointed upon the nomination of a person in- terested in the estate, or his attorney ; nor will an application for costs be entertained under chapter 908 of the Laws of 1896, with- out two days' vsTitten notice of such application to the parties against whom such costs are asked, or his attorney, when repre- sented by an attorney. RULE vn. In probate proceedings the will propounded must accompany the petition, and be filed with the clerk of the court. 650 Eeie County — County Couet. [Rule 11 EuiE vm. In any proceeding wherein a special guardian shall appear to protect the interests of an infant party, no decree shall be entered against such infant party by default; but, such decree shall be entered only upon the written and verified report of such special guardian, to the effect that he has examined the account — where there is one — and also the decree to be entered, and finds the same correct. RULE IX. When a petition for an accounting is presented to the court by an accounting party, the account to which it relates must be filed therewith. On any accounting a party entitled and desiring to contest the account, shall file specific objections, as provided in Rule V, and serve a copy thereof on the attorney for the account- ing party, if he has appeared by an attorney, at least two days before the return day of the citation issued thereon, where the ac- counting is had upon the petition of the accounting party, and at least two days before the day set for a hearing upon an accounting in all other cases, or within such further, or other time as shall for special reasons be allowed by the court and the contest of such account shall be confined to the items so objected to. RULE X. A party contesting a will must, upon the return day of the citation, file a written and verified answer containing his objec- tions to such probate. But one adjournment may be had upon the application of the contestant. Any further adjournments must be on consent of the proponents evidenced by a written stipu- lation filed with the clerk, or made in open court. No other ad- journments shall be allowed except for legal cause shown by affidavit. RULE XI. No paper shall be removed from the files of this office by any person. Ample facilities will be provided for the examination and transcribing of all records by parties or their attorneys. Rule 2] Local Rules of Peaotice. 651 FRANKLIN COUNTY — SUPREME COURT. Calendar Rules. The calendar will be called as usual at the opening of court on the first day. The first twenty causes will constitute the day calendar for the first day of the term. Before adjournment each day, sufficient causes, arranged ac- cording to their order on the general calendar, as affected by previous day calendars, will constitute the calendar for the next day. Causes undisposed of on the day calendar will stand first, and in the same order, on the next day calendar, and enough be added from the general calendar, in their order on such calendar, to make ten for each day. Causes not ready when reached on the day calendar will be stricken from the general calendar, unless otherwise specially ordered. Causes may be set down the first day for a future day, but subject to adjournment of court if sufficient cases are not ready continuously to provide business. FRANKLIN COUNTY — SURROGATE'S COURT. EULE I. The regular court day for the return of citations and the trans- action of court matters shall be Monday of each week except dur- ing the month of August. Court will open at 9 o'clock a. m. and continue until 5 o'clock p. m. EULE n. This court will be closed during the month of August in each year, and no surrogate's court matters will be entertained during that time. This court vnll not be opened for business on legal holidays or half holidays. 652 Franklin Couitty — S'uebogate's Couet. [Rule 8 When the regular court day falls upon a legal holiday all mat- ters returnable on that day will stand adjourned as of course until the next secular day. RULE in. No person other than a regularly admitted attorney-at-law shall be permitted to practice in this court. EULE IV. !N"o paper filed in this court shall be permitted to be removed or taken therefrom. RULE V. A petition filed -in this court for the probate of a will must be accompanied by the original will, which will be filed and must remain in this court until removed according to law. RULE VI. A petition filed in this court for the final settlement of the ac- count of an executor or administrator must be accomplished by an account of proceedings, and proof of publication for claims. RULE vn. 'No special guardian to represent the interests of an infant in any proceeding in this court will be appointed on the nomination of a proponent or accounting party, or his attorney, or upon the application of any person having an interest adverse to that of the infant, and no allowance for services will be made to a special guardian by the court unless he has made and filed his report in the proceeding in which he may be appointed. RULE vin. Whenever an infant is interested in any proceeding in this court, a special guardian will be appointed to safeguard his in- terests, unless the general guardian of such infant appears in per- son, and it appears that he has no interests adverse to those of said minor. Eule 14] Local Eules of Peactice. 65'3 RULE IX. In a contested proceeding for the probate of a will, no costs will be allowed to the contestants in case the will is admitted to probate. RUIE X. All petitions and answers in this court, except as otherwise pre- scribed by law, must be in writing, and must be verified. RULE XI. A party seeking to contest the probate of a will must appear in person or by attorney and file a written answer, duly verified. RULE XII. In any matter or proceeding in which tbere is a contest no hear- ing will be had or evidence taken on Monday. RULE xin. The surrogate, on the written certificate of the person ap- pointed under section 2844 of the Code, to examine the inventory and accounts of guardians filed in said surrogate's ofiice, that a general guardian has omitted to file such inventory or account, or the affidavit required by section 2843, or that the interest of the ward requires that the guardian should render a more satisfactory inventory or account, will make an order requiring the guardian to supply the deficiency. Whenever it shall appear by the cer- tificate of said person that the guardian has failed to comply with such order within three months after its due service upon him, or that there is reason to believe that sufiicient cause exists for the guardian's removal, the surrogate will appoint a special guardian of the ward for the purpose of filing a petition in his behalf and prosecuting the necessary proceedings for the removal of such guardian. RULE XIV. All bonds of adminis-trators and general guardians must con- form in all respects to forms prescribed by the surrogate. 654 Herkimee County — Supreme Couet. [Eule 16 ETJLE XV. In proceedings for the sale of a decedent's real estate Instituted under title V of chapter 18 of the Code of Civil Procedure there must be filed an affidavit of regularity by the attorney before a final decree v?ill be made by the surrogate. RULE XVI. The rules governing the procedure in the Supreme Court, so far as they may be applicable, will be adopted as controlling the practice in this court. GENESEE COUNTY. (For rules of Supreme Court applicable to Genesee county, see under Allegany county.) HERKIMER COUNTY — SUPREME COURT. Ordered : 1. That at the Circuit Court in this county, the first twenty causes on the calendar shall constitute the day calendar for the first day of the circuit ; ten causes ready for trial shall compose the day calendar for each subsequent day, unless otherwise ordered by the circuit judge. 2. The number of causes to go on the day calendar must be left with the clerk of the court by 4 p. m. the day previous. Causes not thus left with the clerk will be considered passed as upon a regular call, to and inclusive of the last cause upon the day calendar. Causes so put on the day calendar must be tried or otherwise disposed of, as the circuit judge shall order for the circuit. 3. Causes may be reserved for a particular day by filing a istlpulation of the attorneys to that effect with the clerk; but reserved causes shall not have priority over causes previously put on the day calendar unless especially ordered by the court. This order shall be published with each calendar. Local Eules of Pbactice. 655 jefferson county — supreme court. Day Calendar. Ordered, That hereafter and until otherwise ordered, a day- calendar be made up for the Trial Term Supreme Court of the county, the first twenty cases to constitute the day calendar for the first day. Every subsequent day calendar shall consist of ten causes placed thereon in the order of their priority on the general calendar, and shall be made up from causes, a memoran- dum of which shall be left with the clerk by 2.30 p. m. of the preceding day ; but causes left over of the preceding day, and not disposed of, shall retain their priority on the day calendar imtil finally disposed of. Causes placed on the day calendar must be disposed of when reached, and will not be reserved, except for special reasons satis- factory to the court. All causes not placed on the day calendar will be considered as passed, down to the last cause, which will be regularly placed upon the day calendar, unless reserved by the court, or postponed, as hereinafter provided. Attorneys may arrange to postpone causes to a day certain, and then put them on the day calendar, by a day's prior notice to the clerk, but not to take precedence of other causes already ap- pearing on the day calendar, or such as shall be duly notified to the clerk of earlier issues. The number of causes for the day calendar shall always be under the direction of the presiding justice. And it is further ordered, that the clerk hereafter, at least three days prior to the commencement of each Trial Term, make a list of the first twenty causes on the calendar of said court and mail a written or printed copy thereof to each member of the bar of said county. And it is further ordered, that no equity or Special Tei-m causes shall be placed on the Trial Term calendar or tried at a Trial Term, except by direction of the court. And it is further ordered, that the clerk cause a copy of this order to be printed in all the Trial Term calendars hereafter pre- pared for said county. 656 Jeffeeson County — County Couet. [Rule 3 JEFFERSON COUNTY — COUNTY COURT. RULE I. Witkin ten days after tlie service of notice by either party tiat a justice's return on appeal has been filed, either party who shall deem said return insufficient may serve a notice on the justice requiring him within thirty days after service of such notice to amend his return, which notice shall specify in what respect his return does not correctly state the testimony and pro- ceeding before said justice, as said party claims. And a copy of such notice shall also be served on the opposite party within five days after the same is served on said justice, and the said opposite party may within ten days thereafter serve on the said justice and opposite party a notice specifying in what respect the return does not correctly state the testimony and proceeding before said justice as said party claims. The said justice shall not make an amended return until the expiration of twenty days from the time of the first notice to amend his return was served on him, and he shall file with such amended return the notice served on him. RULE n. Appeals in civil action (where a new trial may not be had in the county court, pursuant to section 3068 of the Code of Civil Procedure) and issues of law brought up on appeal shall be heard only at law terms of the court at which no jury is required to attend. At the commencement of the argument each party shall deliver to the court and to the adverse party a copy of his points on which he intends to rely, with a reference thereon to the authorities which he intends to cite. RULE m. An application to commit an indigent insane person to the State asylum at the expense of the county shall only be heard upon a reasonable notice of such application to the supervisor of the town or ward where such alleged indigent insane person resides (if a resident of any particular town or ward in said county), and upon notice to the superintendent of the poor of said county. Local Exiles of Practice. 657 Note to Attorneys. Notes of issue are required to be filed in the clerk's office for causes on' appeal from justices' court, eight days before the court, and for all other causes, twelve days before the court. Unless this rule is observed causes cannot be entered on the calendar. Attorneys are requested to notice their causes as issues of fact to be tried by jury, or issues of fact to be tried by the court, or issues of lav?. Do not notice as equity at all. Where a cause is noticed by both parties it is designated thus — X. Where a note of issue is filed by one party only, the party so filing it is designated thus — *. MADISON COUNTY. Notes of issue are now required to be filed in the clerk's office twelve days before the court. Unless this rule is observed, causes cannot be entered upon the calendar. When a note of issue is filed by one party only, the party so filing is designated thus — f. When a cause is noticed by both parties, it is designated thus — *. Rules of the Supreme Court. Special terms for the hearing of ex parte applications and mo- tions on consent will be held at Supreme Court chambers at Bing- hamton, Oneonta, Canastota and Elmira on Saturday of every week, when the resident justice is not otherwise engaged, except in July and August. No motions will be heard at Special Term held with the Trial Terms except in cases triable in the county where the Special Term is held or triable in an adjoining county not within the district; or upon order to show cause granted by one of the justices of the Supreme Court residing in the Sixth Judicial Dis- trict. The calendars for Trial and Special Terms shall contain all cases, those triable with and those triable without a jury. Notes of issue filed shall state whether the action be triabla with or with- 42 658 Madison County — Supreme Couet. out a jury. Those cases triable with a jury shall be first placed upon the calendar, and those triable without a jury shall follow. The call of the calendar in all counties will be governed by the day calendar rules, which follow: Day Calendar Rules. 1. The first ten causes upon the calendar in addition to such causes as shall be moved to the head of the calendar as preferred causes, shall constitute the day calendar for the first day, and each day thereafter the same shall be made up of causes from those not disposed of on the day calendar, and causes from the general calendar in which a request to place upon the day calen- dar stating the number of the cause upon the general calendar shall be filed with the clerk before 4 p. m. the previous day, by an attorney who has noticed the cause for trial, and such causes shall be placed upon the day calendar according to their priority upon the general calendar. 2. Causes upon the day calendar, including those upon the first day calendar not disposed of, shall remain upon and retain tVeir priority on the day calendar until finally disposed of. 3. The clerk shall make up the day calendar at 4 o'clock each day. 4. Causes placed on the calendar must be disposed of when reached and will not be reserved except for special reasons arising after they have been placed upon such day calendar and satisfac- tory to the court. And after a case has been put upon the day calendar no motion will be entertained to put the case over the term except for causes arising after the cause is placed upon such day calendar. 5. All causes not placed on the day calendar will be considered as passed down to the last cause, which shall be regularly placed upon the day calendar unless reserved by the court, or as herein- after provided. 6. Attorneys shall not reserve causes generally, nor reserve them to a day certain, except upon application made to and ap- proved by the court, before such cause shall be placed upon the day calendar. When reserved to a day certain by permission of the court, they are to be placed upon the day calendar after the causes undisposed of already upon such calendar and only upon Local Eules of Practice. 659 notice filed with the clerk before 4 o'clock of the preceding day, hy a party who has noticed said cause for trial. 7. The number of causes for the day calendar shall always be under the direction of the presiding justice, and nothing in this order contained is to interfere with the moving of preferred causes, or the taking of inquests. MONROE COUNTY — SUPREME COURT. Special Trial Term Calendar. At any Trial Term, until further orders, any causes belonging to either of the following classes may be placed on a special calendar, which shall constitute the preferred day calendar for each Friday of the term. 1st. Where the action is on contract, and the answer merely denies the allegations in the complaint without setting up any new matter, and can be tried in an hour. 2d. Where the action is on contract, and new matter is set up in the answer, and there shall be reason to believe that the defense is interposed for delay. only, or, where it shall appear by affidavit that the cause can be tried in an hour. To entitle the cause to be placed upon such calendar, a stipula- tion, signed by the respective attorneys, must be filed with the clerk by three (3) o'clock in the afternoon of the day preceding the Friday upon which it is desired to try the same ; or a motion must be made upon a notice of four days, to have such cause placed upon the short cause calendar. The motion shall be heard at the opening of the court on each Monday forenoon, and, if founded upon the belief that the defense is for delay, and that the case can be tried in an hour, afiidavits must be served with the notice, which may be met by opposing afiidavits. Day Calendar — Preferred and Reserved Causes. Oedeeed, That hereafter at the Circuit Term the day calendar for the first day of the term shall consist of five causes, and the same shall retain their priority on the calendar over such as are preferred under section 793 of the Code of Civil Procedure, until tried or otherwise disposed of. 660 Monroe Oottntt — Cotjntt Couet. [Kule 2 Five causes ready for trial shall compose the calendar for each subsequent day. Such causes as are ordered to be put upon the short cause calendar for any Friday of the term, shall be put at the head of the day calendar for that day, and the regular day calendar will not be called on Friday until such special calendar has been dis- posed of. A cause preferred by the Code of Criminal Procedure may be reserved for a future day of the term upon sufficient cause shown by affidavit. The numbers of the causes to go on the day calendar on each day after the first day, other than those which have been set down for that day, must be left with the clerk of the court by 4 o'clock of the day previous. Causes not thus left with the clerk wiU be considered over the term, as upon a regular call, to and inclusive of the last cause upon the day calendar. Causes may be reserved for a particular day vrith the consent of the court, but reserved causes, whether preferred or not, shall not have priority of causes previously put on the day calendar. This rule shall be nrinted with each general calendar of this court. MONJROE COUNTY — COUNTY COURT. RULE I. Matters in these courts, except as otherwise specially announced, vdll 'be taken up and disposed of in the following order: First, civil jury trials; second, criminal jury trials; third, enumerated motions and appeals from justice's judgment on questions of law, and trials of issues of fact^ triable hj court. EITLE n. Calendar. Hereafter in this court the first ten causes on the calendar shall constitute the day calendar for the first day of the term. Five causes ready for trial shall compose the day calendar for each 9u1:)sequent day. The number of causes to go on the day calendar must be left with the clerk of the court by 4 o^clock of the day Rule 2] Local Eules of Peactice. €61 previous. Causes not thus left with the clerk will be considered passed as upon a i-egular call, to and inclusive of the last cause upon the day calendar. Causes may be reserved for a particular day by consent of the court, but reserved causes shall not have priority over causes pi*eviously put on the day calendar. ISTo cause upon the first day's calendar shall be reserved for a subse^ quent day, except on account of the illness of counsel, or of a party to tie action., the actual engagement of counsel in other courts of record, or for other special reasons, which, in the dis- cretion of the court, render the postponement of the trial abso^ lutely necessary. Special Calendar. Any causes which can be tried or disposed of within an hour may be placed on a special calendar, which shall constitute a preferred day calendar for each Friday of the term. To entitle any cause to be placed upon such calendar a stipulation signed by the respective attorneys must be filed with the clerk by 3 o'clock in the afternoon of the day preceding the Friday upon which it is desired to try the same, or a motion must be made upon a notice of two days to have such cause placed upon the short cause calendar. Such motion shall be heard at the opening of the court on each Monday during the continuance of the term. A certified copy of the order directing a cause to be placed upon a short cause calendar must be served upon the opposing attorney not later than Wednesday preceding the Friday when said cause is expected to be tried. If a cause shall actually occupy more than one hour in the trial thereof, the trial may be suspended, the cause placed at the foot of the calendar, and the moving party charged with the costs of the term in the discretion of the court. If a cause which has been placed upon the short cause calendar for any Friday shall not be reached on that day it shall remain upon the calendar for each succeeding Friday until disposed of, unless sooner reached and disposed of upon a call of the general calendar. Criminal Calendar. Oedeeed, That until further order the district attorney shall, on or before the first day of each term of the Monroe County Court at which a jury is required to attend, maka and file with the clerk a list or calendar of all causes he proposes to move for 662 ISTassau County — Supeeme Ooukt. [Rule 2 trial at such term in the order in which he purposes to naove them. Criminal trials will not, except by special order, be taken Tip until after the civil trial calendar has been disposed of and the court will endeavor to give reasonable notice of the time at which the criminal trial calendar above provided for will he taken up. At the opening of court on the day appointed for taking up said criminal trial calendar, the district attorney shall give notice of any variations or modifications he desires to make in the calendar theretofore filed by him, and any other person desiring to have the trial of any indictment postponed or put over the term shall also, at said time, make application therefor. 'So application for modification of said calendar, or for delay or postponement of any trial, vrill be heard after the first trial is begun on said cal- endar except for special cause shown, and no trial shall be post- poned or put over the term at any time except for suiEcient cause, under the rules applicable to civil causes at circuit. This rule shall be printed in the calendar of the 'County Court, and it, together with the calendar to b© filed as above provided, shall be construed as sufficient notice of trial as to all indictments included in the district attorney's said calendar. MONTGOMERY COUNTY. Notes of issue are required to be filed in the clerk's office twelve days before the sitting of the court. Unless this rule is observed, causes cannot be entered on the calendar. Causes must be disposed of when reached upon the calendar, and no reservation to a day certain will be made unless for cause and at the risk of adjournment of term. NASSAU COUNTY. Calendar Rules. 1. 'At the opening of the term the general calendar will be called through. The answer " Ready " will mean the cause is to go on the day calendar when reached in numerical order. Upon Local Eules of Peactice. •Q&S such call, causes may, with leave of the court, be set down for particular days for trial. Inquests and dismissals may be taken upon such call, and motions to postpone, and to put off, must, be made thereon. 2. The first fifteen causes on the calendar, any other cause answered ready for that day, and all the issues of law, will make the day calendar for the first day of the term. The day calendar will thereafter be made up of the causes marked " Eeady " on the calendar, as reached in their numerical order, and set down causes.. It will be called at the opening of court each day, and inquests and dismissals may be taken thereon. No cause on the day calendar will be set down for a day. The first day a cause is on the day calendar, except the first day of the term, it will be held for that day, on request, if marked ready. 3. Causes may be reserved for a particular day, by filing a stipulation of the attorneys to that effect with the clerk, but re- served causes shall not have priority over causes previously put on the day calendar, unless specially ordered by the court. NIAGARA COUNTY — SUPREME COURT. [For rules of the Supreme Court applicable to ITiagara county, see under Allegany county.] To Attorneys. Wotes of issue are required to be filed in the clerk's office twelve days before the sitting of the court. Unless this rule is observed, causes cannot be entered upon the calendar. The trial fee of one dollar is payable by the party bringing the same on, and must be paid to the clerk when the case is called and before proceeding to trial. The calendar fee of fifty cents must be paid to the clerk for the use of the sheriff by the party first putting the case on the calendar, at the time of filing his note of issue. (See subdivision 4, section 3307, Code Civ. Pro.) Unless this requirement is observed, cases cannot be placed on the calendar. 6-64 Ojteida Cotjntt — County Couet. [Rule i ONEIDA COUNTY — COUNTY COURT. ETJLE I. Civil Calendar. The first fifteen causes on the calendar of any jury term shall constitute the day calendar for the first day of the term. Ten causes ready for trial shall constitute the day calendar for each subsequent day, unless otherwise ordered by the presiding judge. Memorandum of number of causes for day calendar must be left with the clerk in court before 4 o'clock of the day previous by a party who has noticed the cause for trial at the term. 'Causes not on the day calendar will be considered passed as upon a regular call of the calendar to and inclusive of the last cause upon the day calendar. Causes on the day calendar when reached must be tried or dis- posed of as the court directs. RULE n. Copies of affidavits to be read on behalf of appellant, under section 3057, Code Civ. Pro., must be served upon the opposing party at least eight days before the term at which the cause is argued. RULE m. An order for an amended return under section 3055, Code Civ. Pro., will not be granted at a term for which the cause has been noticed for argument, except upon a payment of costs, unless upon proof satisfactory to the court that the application could not have been made sooner. RULE rv. Criminal Calendar. A calendar of indictments to be tried at the Court of Sessions, held in connection with each Jury Term of the County Court, will be prepared by the district attorney, and published by the clerk in connection with and immediately following the civil causes on the same calendar. Such calendar of indictments will be made up as follows: Kule 8] Local Eules of Practice. 665 1st. Of indictments in which the defendants are detained in jail awaiting trial. 2d. Of indictments in which 'the defendants are at large, on bail or otherwise. These indictments shall he so arranged by the district attorney in the order as nearly as may be in which he expects to move them for trial. RULE V. All motions on the behalf of the defendants under indictment, concerning such indictment and the trial or disposition thereof, and all applications for the postponement of the trial of said indictments, shall be made at the opening of said County Court and Court of Sessions, on the first day thereof, and such motions and applications will not be heard later in the term except for sufScient reasons and good cause shown for the delay. The dis- trict attorney, if he is able to do so, will give notice at said lime • of what indictments he does not expect to move at such term of the court. EXILE VI. The trial of indictments shall commence on the first Thursday of each Jury Term, unless otherwise ordered at the commence- ment of such term. RULE vn. Persons under indictment and so needy as to be unable to pro- cure witnesses material to their defense, must make applications for lease to have them subpoenaed at expense of the people, not later than the first Tuesday of Trial Terms and upon three days' written notice thereof to the district attorney. RULE vni. Assignments — Schedules. The schedule of liabilities and assets required to be filed by the assignor or assignee, shall fully and fairly state the nominal and actual value of the assets and the cause for the difference. 666 Oneida County — County Couet. [Eule 13 RULE IX. Recapitulation. There shall be a recapitulation at the end of the schedule as follows : Debts and liabilities amount to $ Assets nominally worth , Assets actually worth RTJIE X. Assignee. Every assignee shall keep full, exact and regular books of account of all receipts, payments and expenditures of money by him, which said books shall always during business hours be open to the inspection of any person interested in the estate. RULE XL In making sales at auction of personal property, the assignee shall give at least ten days' notice of the time and place of sale in the same manner as a sheriff is required by law to give notice of public sale of such property, send a like notice by mail to every creditor whose name appears on the books of the assignor or is known to the assignee, and may advertise the sale in such other prudent manner as the quantity, value and nature of the property to be sold, warrants. Every notice of sale shall state the time, place and terms of sale, and shall contain a brief description, under general heads, of the kind and quantity of property to be sold. A like notice of every public sale of real property shall be given in the same manner at least twenty days immediately before the date fixed for the sale. RULE XII. Upon an application made for an accounting the assignee shall file with his petition his account together with vouchers. RULE xin. A copy of the notice or advertisement requiring creditors to present their claims must be mailed to each creditor whose name appears on the books of the assignor, or who is known to the assignee, with the postage thereon prepaid, at least thirty days before the day specified in such advertisement or notice. Local Rules of Practice. 667 onondaga county — supreme court. Day Calendar. At a Trial Term of the Supreme Court, held in and for the county of Onondaga, at Syracuse, on January 30, 1908. Present — Hon. W. S. Andrews, J. S. C. In the Matter of the Day Calendar. Ordeeed. — I. That a day calendar for each day of a trial term shall be made by the clerk of ten causes, unless otherwise directed by the presiding judge. II. The day calendar for the first day of the October term in each year shall be made from causes noticed for such day calen- dar, by filing such notice with the clerk not later than the Wed- nesday next preceding the commencement of such term; these causes to be selected according to their numerical order on the general calendar. The party filing such notice with the clerk shall, on the same day, serve a duplicate thereof upon the at- torney for the adverse party, personally or by mail, and in de- fault of the service of such notice the cause shall not be moved for trial upon such first day of the term, but shall be stricken from such day calendar. That said day calendar shall be pub- lished in each of the Syracuse daily papers upon Thursday pre- ceding the commencement of the term. The day calendar for the first day of every succeeding term shall be made up on the last day of the preceding term in the same manner as is prescribed below for the day calendars made during each term. III. The day calendar for each day after the first day shall be made from a list of cases ordered placed upon the day calendar, according to their numerical order on the general calendar. To entitle a case to be put on such list : 1. Three days' notice in writing of the application by the party desiring the same shall be given to the attorney or the attorneys representing the opposite party by serving the same before the be- ginning or during the continuance of the term, personally, or by mail, unless the opposing attorney or attorneys, do not reside or do not have an ofBce for the regular transaction of business within the county of Onondaga, in which case five days' notice as afore- said shall be given j and 668 Onondaga County — Stjpeeme Cottet. 2. A notice that such application is to be made shall be filed with the clerk at or prior to 2 o'clock p. m. of the day when it is to be so made. IV. Such application shall be made returnable at the hour of 2 p. m. V. Upon the hearing of an application to place a case upon such list as aforesaid, any party objecting thereto may present to the court an affidavit or affidavits material to the grounds of his objections; if such an affidavit or affidavits are presented the trial judge may permit the moving party to file an answering affidavit or affidavits. VI. The trial judge shall hear the application at that time or at a later time to which it may be adjourned by his order, and if, after such hearing, the case is ordered upon such list it must be tried when reached in its order, unless : 1. By the consent of counsel it is moved over the term in which case, at the discretion of the trial judge, it may be ordered to the foot of the general calendar, or 2. Unless on account of the actual engagement of counsel in a court of equal or superior jurisdiction, or unless on account of the illess of counsel, or unless the presiding justice being of the opinion that the ends of justice so require, other disposition thereof is ordered by such justice. VII. Such list shall be printed at the foot of each day calendar, and shall be continued from term to term, from the October to and including the June term. The clerk shall, however, at the commencement of each term, alter the number of the cases on such list so that such numbers may correspond with the number of such cases on the calendar for such term. VIII. Upon the order of the judge holding any term a special calendar of short causes may be made up which calendar shall be taken up on the day ordered by the judge, and continued, if neces- sary, on the following day and thereafter until disposed of. Any party desiring his cause to be placed on such calendar must show, by affidavit to the satisfaction of the court, that such cause will not occupy in its trial to exceed two hours, and must serve per- sonally, or by mail, on the opposite party, four day's notice of such application, with a copy of such affidavit. Rule 2] Local Rules of Peactice. 669 If the trial of any such cause shall not be completed in two hours, the court may, at its option, suspend such trial and declare it a nullity, and strike the cause from such calendar, and charge moving party with costs of the term. IX. All previous orders in relation to the calendar in this county are hereby revoked. (Enter.) W. S. Andrews, J. S. C. At Circuit In the Matter of Short Cause Calendar. Oedebed, That at the opening of the court, on the first Saturday of the circuit, or if the court does not sit on that day, then at the opening of the court on the next day of the session, a special circuit calendar of short causes on contract be made up, which calendar shall be taken up on the second Friday of the circuit, and continued, if necessary, on the following day and the third Friday. That any party desiring his cause to be placed on such calendar must show, by affidavit, to the satisfaction of the court, that such cause will not occupy in its trial to exceed one hour, and must serve personally, or by mail, on the opposite party, four days' notice of such application, with a copy of such affidavit. If the trial of any such cause shall not be completed in one hour, the court may, at its option, suspend such trial and declare it a nullity, and strike the cause from such calendar, and charge moving party with costs of the term. In the Matter of the Day Calendar. Ordered, That the following additional rules vsdth regard to the day calendar are adopted for the Trial Term of the Supreme Court to be held at Syracuse, beginning on October 5, 1903. RULE I. The day calendar for the first day of the term shall be made up by the clerk as at present provided. UTILE n. The day calendar for each day after the first day shall be made from a list of cases ordered placed upon the day calendar, accord- 670 Onondaga County — Supeeme Cotjet. [Rule 5 ing to their numerical order on the general calendar. To entitle a case to be put on such list, 1. Three days' notice in writing of the application by the party desiring the same shall be given to the attorney or attorneys repre- senting the opposite party by serving the same before the begin- ning or during the continuance of the term, personally, or by mail, unless the opposing attorney or attorneys do not reside or do not have an office for the regular transaction of business within the county of Onondaga, in which ease five days' notice as afore- said shall be given ; and 2. A notice that such application is to be made shall be filed with the clerk at or prior to 4 o'clock p. m. of the day when it is to be so made. RULE ni. Such application shall be made returnable at the hour of 4 p. m. RULE IV. Upon the hearing of an application to place a case upon such list as aforesaid any party objecting thereto may present to the court an affidavit or affidavits material to the grounds of his ob- jection; if such an affidavit or affidavits are presented the trial judge may permit the moving party to file an answering affidavit or affidavits. RULE V. The trial judge shall hear the application at that time or at a later time to which it may be adjourned by his order, and if, after such hearing, the case is ordered upon such list it must be tried when reached in its order, unless 1. By the consent of counsel it is moved over the term, in which case, at the discretion of the trial judge, it may be ordered to the foot of the general calendar, or 2. Unless on account of the actual engagement of counsel in a court of equal or superior jurisdiction, or unless on account of the illness of counsel, or unless the presiding justice being of the opinion that the ends of justice so require, other disposition thereof is ordered by such justice. Local Eules of Peactice, 671 ONTARIO COUNTY. ITotes of issue are required to be filed in the clerk's office twelve days tefoTe the sitting of the court. The trial fee of one dollar is payable by the party bringing the same on, and must be paid to the clerk when the case is called and before proceeding to trial. Calendar fee required. ORANGE COUNTY. Notes of issue are required to be filed in the clerk's office twelve days before the sitting of the court. Unless this rule is observed causes cannot be entered on the calendar. Calendar Rules. 1. The day calendar for each day will consist of a " Eeady " section and a " Reserve " section, and both sections wall be called at 10 o'clock. The causes on the ready section must be ready and will be tried that day. Those on the reserve section will be passed for the day if marked " Ready " on the morning call. Inquests and dismissals will be taken on such call. The first thirty causes on the general calendar will constitute the day cal- endar for the first day of the tei-m, the first fifteen being on the ready section. 2. Causes will not be set down for a day after they appear on either section of the day calendar. Before that they may be set down for a day by the court in its discretion on stipulation or motion. 3. The court will hear no excuses for not being ready or motions to postpone except on affidavits ; and if motions be after- ward made to open defaults, such affidavits must be made part of the moving papers. 672 Oswego County — ^Supeeme Court. orleans county. [For rules of the .Supreme Court, applicable to Orleans countj, see under Allegany county.] Notes of issue are required to be filed witb the clerk twelve days before the sitting of the court, to secure entry of the same on the calendar. Trial fee one dollar. OSWEGO COUNTY. Day Calendar Rules — Supreme Court. Ordered, That hereafter, and until otherwise ordered, a day calendar be made up for Trial Terms of the .Supreme Court in Oswego county; the first twenty causes, to constitute the day cal- endar for the first day. The day calendar for the second day will be made up from the causes of which a memorandum shall be left with the clerk by 3 o'clock p. m. of Monday, by the attor- ney who shall have noticed the cause for trial, and shall be put on the day calendar according to their priority on the general calendar. Every subsequent day calendar shall include ten causes, to be made up in the same manner from memoranda left with the clerk by 3 o'clock p. m. of the preceding day; but causes left over of the preceding day and not disposed of, shall retain their priority on the day calendar until finally disposed of. Causes placed upon the day calendar must be disposed of when reached, and will not be resei-ved except for very special reasons satisfactory to the court. All causes not placed upon the day calendar will be considered as passed down to the last cause which shall be regularly placed upon the day calendar, unless reserved by the court or postponed as hereinafter provided. Attorneys may arrange to postpone causes to a day certain, and then put them upon the day calendar by a day's prior notice to the clerk, but not to take precedence of other causes already appearing upon the day calendar, or such as shall be duly notified to the clerk of earlier issues. The number of causes for the day calendar shall always be under the direction of the presiding justice. Hule 6] Local Rules of Peactice. 6T3 OSWEGO COUNTY — COUNTY COURT. RULE I. All calendar causes for argument shall he argued or sulanitted \>e£ove trials by jury stall be commenced. RULE n. In all calendar causes for argument, each party at the com- mencement of the argument shall furnish to the court a copy of the points on which he intends to rely, with reference to the au- thorities which he intends to cite, accompanied with a concise statement of the facts of the case which he deems established, and shall at the same time deliver a copy to the adverse party. RTJIE ni. If the return of the justice is defective the court will, upon the production of an affi-davit specifying the defects, upon notice, direct the justice to make a further or amended return. The court is always open for that purpose. ETJIE IV. Copies of affidavits to be read on behalf of appellant, under section 30i57, Code of Civil Procedure, must be served upon the opposing party at least eight days before the term at which the cause is argued. ETJIE V. An order for an amended return under section 30'55, Code Civil Procedure, will not be granted at a term for which the cause has been noticed for argument, except upon payment of costs, unless upon proof satisfactory to the court that the aoplication could not have been made sooner. RULE VI. Causes on the general calendar must be tried or otherwise dis- posed of for the term when reached in order. 43 674 Oswego County — Supreme Coukt. [Rule & RULE VII. All motions to correct the calendar, or to put causes over the term, or to refer causes, shall be made the first day of each term,, on the informal call of the calendar at the opening of the court. RTJiE vm. I Final applications of aliens to be admitted to become citizens of the United States, pursuant to chapter 927 of the Laws of 1895, shall be heard and final action thereon had at each law term of the county court and on Monday of each week of the jury terms. RULE IX. Criminal Calendar. At least ten days before the term the district attorney shall furnish the clerk with a list of indictments which he intends to try, and in the order in which they are intended to be moved for trial, giving preference on the calendar to defendants confined in jail, with the names of the defendants and the nature of the oifense for which the indictment was found. The clerk from said list shall cause to be printed a criminal calendar to be incorporated with the calendar of civil causes for said term. The criminal calendar shall not be moved before the third day of the term, provided the civil business is sufficient to occupy the court. All motions on behalf of the defendants under indictment, con- cerning such indictment and the trial or disposition thereof, and all applications for the postponement of the trial of said indict- ments, shall be made at the opening of court, on the first day thereof, and such motions and applications will not be heard later in the term except for sufficient reasons and good cause shown for the delay. The district attorney, if he is able to do so, will give notice at said time of what indictments he does not expect to move at such term of court. liule 5] Local Rules of Practice. 675 OTSEGO CO0NTY — SUPREME COURT. Day Calendai Rules. EULE I. The first ten causes upon the calendar in addition to such causes as shall be moved to the head of the calendar as preferred causes, shall constitute the day calendar for the fi,rst day, and each day thereafter the same shall be made up of causes from those not disposed of on the day calendar, and cases from the general calendar in which a request to place upon the day calendar stating the number of the cause upon the general calendar shall be filed with the clerk before i o'clock p. m. the previous day, by an attorney who has noticed the cause for trial and such causes shall be placed on the day calendar according to their priority upon the general calendar. RULE U. Causes upon the day calendar including those upon the first day calendar not disposed of shall remain upon and retain their priority on the day calendar until finally disposed of. RULE m. The clerk shall make up the day calendar at 4 o'clock each day. RULE IV. Causes placed on the calendar must be disposed of when reached and will not be reserved except for special reasons aris- ing after they have been placed upon such day calendar and satisfactory to the court. And after a case has been put upon the day calendar no motion will be entertained to put the case over the term except for causes arising after the cause is placed upon such day calendar. RULE V. All causes not placed on the day calendar will be considered as passed down to the last cause, which shall be regularly placed upon the day calendar unless reserved by the court, or as herein- after provided. 676 Otsego County — Slfpeeme Couet. [Rule 20 RULE VI. Attorneys shall not reserve causes generally, nor reserve them to a day certain, except upon application made to and approved by the court, before such cause shall be placed upon the day calendar. When reserved to a day certain by permission of the court, they are to be placed upon the day calendar after the causes undisposed of already upon such calendar and only upon notice filed v^ith the clerk before 4 o'clock of the preceding day, by a party who has noticed said cause for trial. RULE vn. The number of causes for the day calendar shall always be nnder the direction of the presiding justice, and nothing in this order contained is to interfere with the moving of preferred causes, or the taking of inquests. Kules Adopted by the Court and Ordered Printed in Each Calendar. RULE XX. It shall be the duty of the attorney, by whom the copy pleading shall be furnished for the use of the court on trial, to plainly designate, on each pleading, the part or parts thereof claimed to be admitted or controverted by the succeeding pleadings. Special terms for the hearing of ex parte applications and mo- tions on consent will be held at Supreme Court chambers at Binghamton, Oneonta, Canastota and Walton, on Saturday of every week, when the resident justice is not otherwise engaged, except in July and August. No motions will be heard at Special Terms held with the Trial Terms except in cases triable in the county where the Special Term is held, or triable in an adjoining county not within the district ; or upon order to show cause granted by one of the justices of the Supreme Court residing in the sixth judicial district. The calendars for Trial and Special Terms shall contain all cases, those triable with and those triable without a jury. ISTotes of issue filed shall state whether the action be triable with or with- out a jury. Those cases triable with a jury shall be first placed upon the calendar, and those triable without a jury shall follow. The call of the calendar in all counties will be governed by the day calendar rules. Local Rules of Pkaoticb. '677 QUEENS COUNTY. Calendar Rules. 1. Any cause may be set down for a day, by a stipulation filed with the clerk, before it appears on the day calendar, except that it may not be advanced out of its order in that way. Causes marked " off," on the call of the day calendar, may be set down for a day of any subsequent term only, by a stipulation or a two days' notice filed with the said clerk. 2. Causes will not be set down for days upon the call of the day calendar. The answer must be " ready," or " off." 3. The first day a cause is on the day calendar it will be held for that day, if marked " ready." 4. The court will take notice of engagements of counsel in Queens county upon an oral statement. 5. The court will pay no regard to engagements of counsel else- where, unless a signed written statement thereof (which need not be sworn to) be submitted, giving the title of the cause in which the engagement is, in what court and part, and before what judge such cause is on trial, and when the trial commenced, and how long it is likely to continue. Engagements in an Appellate Court will not be regarded unless stated in the same way and with equal precision. 6. All other excuses, or motions for delay, or for holding, or postponing causes, must be presented by afiidavit on the call of the day calendar in order to be considered for any purpose, including a motion in the Special Term to open a default. 7. The court will not hear oral statements or arguments in re- spect of such engagements, excuses or motions, and will pass upon such written statements, or affidavits thereof, by indorsements thereon, after the call of the day calendar, and file the same with the clerk. 8. ISTot more than one cause will be held ready on the day cal- endar for one counsel in addition to the one he may be engaged in trying in Queens county, or if he engaged out of Queens county, and in all cases the counsel who is to try the cause must be desig- nated on the call of the day calendar, if required by the court. 678 Rensselaee County — Supebme Couet. RENSSELAER COUNTY. Trial Term Rules. 1. On the first day of the Trial Term, after the grand and trial jurors shall have been sworn, and other preliminary business dis- patched, the justice presiding shall call the preferred and general -calendar of causes and mark the same in such manner as to the court may seem just and proper. 'No cause shall be peremptorily called for trial for the first day of the term, but the presiding justice shall make up a day calendar for the second day composed of the first six causes that shall be ready for trial in their order. Any causes in which both sides shall be ready for trial may be tried, with the consent of the presiding justice, on the first day of any Trial Term, irrespective of its place upon the calendar, except that if two such cases be ready, that case with the earlier date of issue shall have precedence. If the trial of any such case begun upon the first day of the term shall not be completed upon that day, the day calendar prepared for the second day shall not be taken up until final disposition is made of such case so begun. 2. The Trial Term shall be convened on the first day thereof at 12 o'clock m. 3. Causes on the general calendar marked for trial, if not re- sponded to when called in the making up of the day calendar, shall be passed ; when reserved, generally, they shall not be placed on the day calendar for trial except upon notice of twenty-four hours in writing, and shall then be put upon the day calendar, at such place as the court shall direct. 4. A cause upon the day calendar when reached must be tried or go to the foot of the general calendar for the term, unless cause be shown for a different disposition. 5. At the opening of the court on each day the day calendar shall be called through. Upon such call any cause not responded to by either party shall be passed for the term, unless the case has been specially marked by the court on the day calendar as one to be retained thereon. If, on such call, a cause be responded to by the plaintiff only, he may take judgment in default of the defendant. If, upon such call, a cause be responded to by the de- fendant only, he may take a dismissal. Local Eulss of Peactice. 679 6. Day calendars will be made up: First, from cases marked ready; second, from those marked for some specific day of the firs-t week ; third, from those marked for the second week ; fourth, from those marked for some specific day of the second week; fifth, from those marked for the third week. Cases not ready to Ibe placed upon the day calendar will go to the foot of the term calendar, from which they may be placed upon the day calendar when all other cases have been disposed of. Cases marked " re- served " when called up will go to the foot of the term calendar. 1. At 12:45 p. m. on each day, except the first day of the term, the day calendar for the succeeding court day shall be made, to consist of not more than six causes. The calendar shall con- sist of all the causes in the order in which they stand on the day calendar not disposed of, and after them, of such causes as shall be added, taken in the order in which they stand on the general calendar. 8. In actions on contract, where the trial will not probably occupy more than one hour, either party may apply on the first day of the term, on a notice of four days, and on affidavits served, to set down the issue as a short. 9. Short causes shall be called on Friday of each week. If the trial shall occupy more than one hour, it may be suspended in the discretion of the court, and the cause placed at the foot of the general calendar. Miscellaneous Rules. Notes of issue not filed twelve days (inclusive of Sundays) pre- Tious to the sitting of court will not be placed in the calendar. They should state which are for argument, and which for trial. If a cause answered " ready " by the plaintiff, be afterward answered " off," by the plaintiff, or made unduly obstructive by the unreadiness of the plaintiff, it may be stricken from, or sent io the foot of the general calendar. Any action on contract or for conversion or to recover a chattel which is on the calendar (having a number), may be ad- vanced to any day calendar by any party, by filing at least thirty days prior thereto with the calendar clerk in Part I, an affidavit showing that some necessary party to the action was at the time of its commencement a resident of Queens county, and if the plain- tiff is an assignee of the cause of action, that the assignor or some 680 EicHMOND County — Supreme Coukt. necessary defendant was then such resident; together with proof of notice of such advancement to all parties who have appeared, or in lieu thereof the consent of all such parties. Causes so advanced must be tried when reached, or the preference and th& right thereto under this rule is lost, unless otherwise ordered by the court. A calendar of causes noticed for a term will be made up and printed by the clerk; the numbering thereof following consecu- tively the highest number on the calendar of the last preceding term. A cause once placed and numbered in a term calendar will retain such number until it is finally disposed of, unless by direc- tion of the court, a new calendar, of all cases undisposed of, is made up, in which event, in addition to its new numbers thereon, its former number shall be parenthetically given in smaller type. Calendar fee required. RICHMOND COUNTY. Calendar Rules. 1. At the opening of the term the general calendar will be called through. The answer " ready " will mean the cause is to go on the day calendar, when reached in numerical order. In- quests and dismissals may be taken upon such call, and motions to postpone and to put off must be made thereon. 2. The first twenty-five jury causes on the general calendar, and any other jury causes answered ready for that day, will make the day calendar for the first day of the term. The day calendar will thereafter be made up of causes marked ready on the general calendar, as reached in their numerical order, and set down causes. It will be called at the opening of court each day, and inquests and dismissals may be taken thereon. ISTo cause on the day calendar will be set down for a day. The first day a cause is on the day calendar, except the first day of the term, it will bi? passed for that day if marked ready. Causes may be set down for a day by stipulation before appearing on the day calendar. 3. Engagements of counsel in other counties are not legal ex- cuses for holding or postponing causes, or upon motions to open defaults. Excuses must be presented by afiidavit in order to be- considered, and such affidavits must be produced on motions to open defaults. Local Rules of Peaotice. 681 Special Term Calendai Rules. 1. Any cause may be set down for a day, by stipulation filed -with the clerk, before it appears on the day calendar, except that it may not be advanced out of its order in that way. Causes marked " off " on the call of the day calendar may be set down for a day of any subsequent term only, by a stipulation or a two days' notice filed with the said clerk. 2. Causes will not be down for days upon the call of the day calendar. The answer must be " ready " or " off." 3. The first day a cause is on the day calendar it will be held for that day if marked " ready." 4. The court will take notice of engagements of counsel in Richmond county upon an oral statement. 5. The court will pay no regard to engagements of counsel elsewhere, unless a signed written statement thereof (which need not be sworn to) be submitted, giving the title of the cause in which the engagement is, in what court and part, and before what judge such cause is on trial, and when the trial commenced, and how long it is likely to continue. Engagements in an Appellate Court will not be regarded, unless stated in the same way and with equal precision. 6. All other excuses, or motions for delay, or for holding, or postponing causes, must be presented by affidavit on the call of the day calendar in order to be considered for any purpose, in- cluding a motion in the Special Term to open a default. 7. The court will not hear oral statements, or arguments in respect of such engagements, excuses or motions, and will pass upon such written statements or affidavits thereof, by indorse- ments thereon, after the call of the day calendar and file the same with the clerk. 8. 'Sot more than one cause will be held ready on the day calen- dar for one counsel in addition to the one he may be engaged in trying in Richmond county, or if he be engaged out of Richmond county, and in all cases the counsel who is to try the cause, must be designated on the call of the day calendar, if required by the court. 9. If a cause is answered " ready " by the plaintiff, be after- ward answered " off " by the plaintiff, or made unduly obstructive hy the unreadiness of the plaintiff, it may be stricken from, or sent to the foot of the general calendar. B'82 ScHBYLBE County — Supreme Couet. Sherifi's Calendar Fees. Title V, section 3307, article 4, ISTew Code, provides for the collection of calendar fees by the clerk for use of sheriff. No case ■will be placed on the calendar until the money is paid to the clerk as therein provided, Notice. ITotes of issue must be filed at least twelve dayr before the term begins. The nature of the issue, whether of fact or of law, and if an issue of fact, whether it is triable by a jury, or by the court without a jury, should also be stated. Preferred causes should also be noted as such. SCHOHARIE COUNTY. Notes of issue are required to be filed in the clerk's office at least twelve days before the sitting of the court. Unless this rule is observed, causes cannot be entered upon the calendar. Calendar fee required. SCHUYLER COUNTY — SUPREME COURT. Calendar Rules. Special terms for the hearing of ex parte applications and motions on consent will be held at Supreme Court chambers at Binghamton, Norwich and Oneida, on Saturday of every week, when the resident justice is not otherwise engaged. No motions will be heard at Special Terms held with the Trial Terms except in cases triable in the coimty where the Special Term is held, or triable in an adjoining county not within the district; or upon order to show cause granted by one of the justices of the Supreme Court residing within the Sisfth Judicial District. The calendars for Trial and Special Terms shall contain all cases, those triable with and those triable vsdthout a jury. Notes of issue filed shall state whether the action be triable with or with- out a jury. Those cases triable with a jury shall be first placed upon the calendar, and those triable without a jury shall follow. Local Bules of Peactice. 683 Notes of issue are required to be filed in the clerk's oSice twelve days before the sitting of the court. Where the return has been filed the requisite time, the clerk -will place the cause upon the calendar of the term for which a note of issue has been duly filed by either party, but need not place any cause upon the calendar until a note of issue in the cause has been first filed. After a note of issue has been once filed in the cause, the clerk -will place the cause upon the calendar of every subsequent regular term of the court until such appeal has been disposed of, without the filing of any new note of issue. No party wiU be allowed to move the cause and take default, or have argument of the appeal at any term, unless the cause has been duly noticed for argument by one party or the other for that particular term. And no motion will be entertained to dismiss an appeal for failure to bring it to a hearing within section 3062, Code of Civil Procedure, at any term unless the appeal has been duly noticed for argument for that term, by one of the parties. SCHUYLER COUNTY. Day Calendar Rules. 1. The first ten causes upon the calendar, in addition to such •causes as shall be moved to the head of the calendar as preferred causes, shall constitute the day calendar for the first day, and each day thereafter the same shall be made up of causes from those not disposed of on the day calendar, and cases from the general calen- dar in which a request to place upon the day calendar stating the number of the cause upon the general calendar shall be filed with the clerk before 4 o'clock p. m. the previous day, by an attorney who has noticed the cause for trial, and such causes shall be placed on the day calendar according to their priority upon the general calendar. 2. Causes upon the day calendar including those upon the first day calendar, not disposed of, shall remain upon and retain their priority on the day calendar until finally disposed of. 3. The clerk shall make up the day calendar at 4 o'clock •each day. 684 Senega County — Supeesie Couet. 4. Causes placed on the calendar must be disposed of when reached, and will not be reserved except for special reasons arising after they have been placed upon such day calendar and satisfac- tory to the court. And after a case has been put upon the day calendar no motion will be entertained to put the case over the term except for causes arising after the cause is placed upon such day calendar. 5. All causes not placed on the day calendar will be considered as passed down to the last cause, which shall be regularly placed upon the day calendar unless reserved by the court, or as herein- after provided. 6. Attorneys shall not reserve causes generally, nor reserve them to a day certain, except upon application made to and ap- proved by the court, before such cause shall be placed upon the day calendar. When reserved to a day certain by permission of the court, they are to be placed upon the day. calendar after the causes undisposed of already upon such calendar and only upon notice filed with the clerk before 4 o'clock of the preceding day, by a party who has noticed said cause for trial. 7. The number of causes for the day calendar shall always be under the direction of the presiding justice, and nothing in this order contained is to interfere with the moving of preferred causes, or the taking of inquests. Notes of issue are required to be filed in the clerk's office twelve days before the sitting of the court, in order to have the calendar ready for delivery five days before the sitting of the court. The calendar for Trial and Special Terms shall contain all cases, those triable with and those triable without a jury. Notes of issue filed shall state whether the action be triable with or with- out a jury. Those cases triable with a jury shall be first placed upon the calendar, and those triable without a jury shall follow. SENECA COUNTY. Notes of issue are required to be filed in the clerk's office twelve days before the sitting of the court, in order to have the calendar ready for delivery five days before the sitting of the court. Local Rules of Practice. 685 ST. LAWRENCE COUNTY — SUPREME COURT. Calendar Rules. The calendar will be called as usual at tlie opening of court on the first day. The first twenty, causes will constitute the day calendar for the first day of the term. Before adjournment each day, sufiicient causes, arranged ac- cording to their order on the general calendar, as affected by previous day calendars, will constitute the calendar for the next day. Causes undisposed of on the day calendar will stand first, and in the same order, on the next day calendar, and enough be added from the general calendar, in their order on such calendar, to make ten for each day. Causes not ready when reached on the day calendar will be stricken from the general calendar, unless otherwise specially ordered. Causes may be set down the first day for a future day but subject to adjournment of court if sufficient cases are not ready continuously to provide business. STEUBEN COUNTY — SUPREME COURT; "Every cause placed on the calendar of a General Term, Circuit or Special Term for the trial of equity cases shall be moved for argument or trial when reached in its order, and shall not Be reserved, or put over, except by consent of the court; and if passed without being so reserved or put over, it shall be entered on all subsequent calendars, as of the date when passed, and no term fee shall be taxed therein for any subsequent term." This rule will be rigidly enforced. No reservation will be allowed any of the first five causes on the calendar except by order of the court, because of sickness of counsel or unavoidable absense of a witness, to be shown by affidavit. This order shall be printed at the top of the list of causes. 686 SuFEOLK County — County Couet. [Rule E. SUFFOLK COUNTY — COUNTY COURT. RTJIE I. Matters in these courts, except as otherwise specially directed, will be taken up and disposed of in the following order: 1. Ex parte business and motions. 2. Civil jury trials. 3. Criminal jury trials. 4. Appeals on questions of law, and trials of issues of fact by the court. RULE n. If a justice of the peace shall neglect to make and file his re- turn within the time prescribed by law, either party may apply to the court, ex parte, for an order requiring such justice to make and file his return. RULE in. Before an appeal has been noticed for argument, or within ten days after the return is filed, either party may obtain one order, ex parte, for an amended return. RULE IV. On appeals in criminal actions the return shall contain all the testimony and be made substantially in the same form and man- ner as on an appeal on questions of law only, in a civil action. RULE V. A calendar of criminal actions to be tried at each jury term will be prepared by the district attorney and filed with the clerk on or before the Monday next preceding the first day of each term. These causes will be placed on such calendar in the order in which the district attorney expects to move them for trial, subject to such modification as he may find to be neces- sary or advisable. Such calendar shall be printed immediately following and on the same calendar with the civil causes. Eiule 11] Local Rules of Pbaotice. 687 RULE VI. All motions on behalf of defendants in criminal actions and all applications for postponement of trial, shall be made at the opening of court on the first Monday thereof, and such motions and applications will not be heard later in the term, except for sufficient reasons and good cause shown for the delay. RULE vn. iN'otes of issue on appeals (on law or facts) in civil actions and on appeals in criminal actions, must be filed with the clerk at least eight days before the commencement of the term; and notes of issue in actions originally brought in the County Court, must be filed with the clerk at least twelve days before the com- mencement of the term. RULE vm. The clerk will prepare a calendar for each jury term of the County Court (as specified in rules 7 and 5) and cause the same to be printed and furnish a sufficient number of copies for the use of the court and bar. RULE IX. The district attorney will furnish the county judge with copies of all indictments which he proposes to try at least ten days prior to the first day of the term at which he moves them for trial. RULE X. The plaintiff's or appellant's attorney, as the case may be, will furnish the county judge with copies of all the pleadings in each civil suit at least two weeks before the first day of the term at which the cause is noticed for trial. RULE XI. In all actions and proceedings, both civil and criminal, tried by the court without a jury, in which decision is reserved, and in all appeal cases, briefs will be furnished the court by both sides within fifteen days after final submission to the court, un- less a shorter or longer period is mutually agreed on and ap- proved by the court. 688 Tioga County — Supeeme Couet. [Rule 12 RULE XII. The practice in other respects shall be governed by the rules of the Supreme Court, so far as the same are applicable. TIOGA COUNTY — SUPREME COURT. Special Terms, for the hearing of ex parte applications and motions on consent, will be held at Supreme Court chambers at Binghamton, Oneonta, Canastota and Elmira on Saturday of every week, when the resident justice is not otherwise engaged, except in July and August. No motions will be heard at Special Terms held with the Trial Terms, except in cases triable in the county where the Special Term is held, or triable in an adjoining county not within the district; or upon order to show cause, granted by one of the justices of the Supreme Court residing in the sixth judicial district. The calendars for Trial and Special Terms shall contain all cases, those triable with and those triable without a jury. Ifotes of issue filed shall state whether the action be triable with or without a jury. Those cases triable with a jury shall be first placed upon the calendar, and those triable without a jury shall follow. The call of the calendar in all the counties will be governed by the day calendar rules, which follow. Day Calendar Rules. First. The first ten causes upon the calendar, in addition to such causes as shall be moved to the head of the calendar as pre- ferred causes, shall constitute the day calendar for the first day, and each day thereafter the same shall be made up of causes from those not disposed of on the day calendar; and causes from the general calendar in which a request to place upon the day calendar, stating the number of the cause upon the gen- eral calendar, shall be filed with the clerk before four o'clock p. m. the previous day, by an attorney who has noticed the cause for trial, and such causes shall be placed on the day calen- dar according to their priority upon the general calendar. Eule 26] Local Rules of Practice. 689 Second. Causes upon the day calendar (including those upon the first day calendar) not disposed of, shall remain upon, and retain their priority on, the day calendar until finally disposed of. Third. The clerk shall make up the day calendar at four o'clock each day. Fourth. Causes placed on the calendar must be disposed of -when reached, and will not be reserved except for special reasons arising after they have been placed upon such day calendar, and satisfactory to the court- And after a case has been put upon the day calendar, no motion will be entertained to put the case over the term, except for causes arising after the cause is placed npon such day calendar. Fifth. All causes not placed on the day calendar will be con- sidered as passed down to the last cause, which shall be regularly placed upon the day calendar, unless reserved by the court, or as hereinafter provided. Sixth. Attorneys shall not reserve causes generally, nor reserve them to a day certain, except upon application, made to and approved by the court, before such cause shall be placed upon the day calendar. When reserved to a day certain by permission •of the court, they are to be placed upon the day calendar after the causes undisposed of already upon such calendar, and only upon notice, filed with the clerk before four o'clock of the pre- ceding day, by a party who has noticed said cause for trial. Seventh. The number of causes for the day calendar shall always be under the direction of the presiding justice, and nothing in this order contained is to interfere with the moving •of preferred causes or the taking of inquests. RULE XX. It shall be the duty of the attorney, by whom the copy plead- ings shall be furnished for the use of the court on a trial, to plainly designate, on each pleading, the part or parts thereof claimed to be admitted or controverted by the succeeding pleading. RUIE XXVI. * * * Every cause placed on the calendar of the Trial Term or Sipecial Term, for the trial of equity cases^ shall be 44 690 Tompkins County — Stjpeeme Couet. [Eule 26 moved for argument, on trial, when reached in its order, and shall not be reserved or put over, except by consent of the court, unless otherwise permitted by special rule, and, if passed with- out being so reserved or put over, it shall be entered on all sub- sequent calendars as of the date when passed, and no term fee shall be taxed therein for any subsequent term. The clerk is directed to enter on his minutes the title of every cause passed, the date when passed, and to keep in his office a list of passed causes: and, whenever a passed cause is placed upon a calendar, the word " passed," followed by the date when passed, shall be entered under the date of issue. If two or more causes are passed upon the same day, the right to priority as between them on subsequent calendars shall be de- termined by the date of issue. The clerk is directed to print in every calendar Rule XX, the foregoing extract from Eule XXXVI, and the foregoing rule for carrying into effect Eule XXXVI, which was adopted on Decem- ber 5, 1881, and ordered in the minutes of the court. TOMPKINS COUNTY — SUPREME COURT. Special Term for the hearing of ex parte applications and motions on consent will be held at Supreme Court chambers at Binghamton, Oneonta, Canastota and Elmira on Saturday of every week when the resident justice is not otherwise engaged except July and August. Wo motion will be heard at Special Terms held with the Trial Terms except in cases triable in the county where the Special Term is held or triable in an adjoining county not within the district; or upon order to show cause granted, by one of the justices of the Supreme Court residing in the Sixth Judicial District. The calendars for Trial and Special Terms shall contain all cases, those triable with and those triable without a jury. Notes of issue filed shall state whether the action be triable with or without a jury. Those cases triable with a jury shall be first placed upon the calendar and those triable without a jury shall follow. Local Rules of Peactice. 691 The call of tlie calendar will be governed by tbe day calendar rules which follow: First: The first ten causes upon the calendar shall constitute the day calendar for the first day, and each day thereafter the same shall be made up of eight causes from those not disposed of on the day calendar, and cases from the general calendar in which a request to place upon the day calendar, stating the number of the cause upon the general calendar shall be filed with the clerk before 4: o'clock p. m., the previous day, by an attorney who has noticed the cause for trial and such causes shall be placed on the day calendar according to their priority upon the general calendar. Second: Causes upon the day calendar including those upon the first day calendar, not disposed of shall remain upon and re- tain their priority on the day calendar until finally disposed of. Third : The clerk shall make up the day calendar at i o'clock each day. Fourth: Causes placed on the calendar must be disposed of when reached and will not be reserved except for special reasons arising after they have been placed upon such day calendar and satisfactory to the court. And after a case has been put upon the day calendar no motion will be entertained to put the case over the term except for causes arising after the cause is placed upon such day calendar. Fifth: All causes not placed on the day calendar will be con- sidered as passed down to the last cause, which shall be regularly placed upon the day calendar unless reserved by the court, or as hereinafter provided. Sixth: Attorneys shall not reserve causes generally, nor re- serve them to a day certain, except upon application made to and approved by the court, before such cause shall be placed upon the day calendar. When reserved to a day certain by permission of the court, they are to be placed upon the day calendar after the causes undisposed of already upon such calendar and only upon notice filed with the clerk before 4 o'clock of the pre- ceding day, by a party who has noticed said cause for trial. Seventh: The number of causes for the day calendar shall always be under the direction of the presiding justice, and 6'92 Tompkins County — Supkeme Cotjet. [Eule 39 nothing in this order contained is to interfere with the taking of inquests. To Attorneys. ISTotes of issue are required to be filed in the clerk's ofiice twelve days before the sitting of the court. Unless this rule is observed, causes cannot be entered on the calendar. Notes of issue should be written only on one side of the paper. To insure accuracy, names should be legibly written and s.pelled correctly. By section 3307, subdivision 4, of the Code of Civil Procedure, the sheriff is entitled to the following fee: For notifying jurors to attend a Trial Term of a court of record, fifty cents for each cause placed upon the calendar for trial by a jury, to be paid by the party first putting the cause on the calendar for that term. But the sheriff is not entitled to more than one dollar and fifty cents for calendar fees in one action. The clerk shall not put a cause upon the calendar for trial by a jury until the fee specified in this subdivision is paid to him for the use of the sheriff. Rules Adopted by the Court, and Ordered Printed in Each Calendar. RULE XX. It shall be the duty of the attorney, by whom the copy plead- ings shall be furnished for the use of the court on a trial, to plainly designate, on each pleading, the part or parts thereof claimed to be admitted or controverted by the succeeding pleadings. EXTRACT FEOM EULE XXXIX. Every cause placed on the calendar of a General Term Circuit, or Special Term for the trial of equity cases, shall be moved for argument or trial when reached in its order and shall not be reserved, or put over, except by consent of the court; and, if passed without being so reserved, or put over, it shall be entered on all subsequent calendars as of the date when passed and no term fee shall be taxed therein for any subsequent term. The clerk is directed to enter in his minutes the title of every cause passed, the date when passed, and to keep in his office Eule 39] Local Eules of Pkaoticb. 603 a list of passed causes; and whenever a passed cause is placed upon a calendar, the word " passed," followed by the date when passed, shall be entered under the date of issue. If two or more causes are passed upon the same day, the right to priority as between them on subsequent calendars, shall be determined by the date of issue. The clerk is directed to print in every calendar — Rule XX — the foregoing extract from Rule XXXIX - — and the foregoing rule for carrying into effect Rule XXXIX which is, this lith day of March, 1881, adopted and ordered entered in the minutes of the court. WARREN COUNTY. ]!^otes of issue are required to be filed in the clerk's office at least twelve days before the sitting of the court. When the date of issue is not given the cause is placed at the end of the proper calendar. Calendar fee required. WASHINGTON COUNTY. IvTotes of issue are required to be filed in the clerk's office at least twelve days before the court convenes. When the date of issue is not given, the cause will be placed at the end of the proper calendar. When the note of issue filed with the clerk does not inform him wheth,er the issue is of fact or of law, nor whether the same is triable by a jury or by a court without a jury, the cause will be placed upon the jury calendar. Calendar fee not required. WAYNE COUNTY. N'otes of issue are required to be filed in the clerk's office twelve days before the sitting of the court The trial fee of one dollar is payable by the parly bringing th© same on, and must be paid to the clerk when the case is called and before proceeding to trial. 694' Westohestee County — Supeeme Couet. WESTCHESTER COUNTY. Supreme Court Calendar Rules. 1. Any cause may be set down for a day by a stipulation filed with the clerk, before it appears on the day calendar, except that it may not be advanced out of its order in that way. Causes marked " off " on the call of the day calendar may be set downfor a day of any subsequent term only, by stipulation or a five days' notice to the other side filed with the clerk. 2. Causes will not be set down for days upon the call of the day calendar. The answer must be " ready " or " off." 3. The first day a cause is on the day calendar it will be held for that day if marked " ready." 4. The court will pay no regard to engagements of counsel else- where, unless a signed written statement thereof by the attorney or counsel (which need not be sworn to) be submitted, giving the title of the cause in which the engagement is, in what court and part, and before what judge such cause is on trial, and when the trial commenced, and how long it is likely to continue. Engage- ment in an Appellate Court will not be regarded, unless stated in the same way and with equal precision. An oral statement of any engagement in this county will suffice. 5. All other excuses or motions for delay, or for holding or postponing causes must be presented by affidavit on the call of the day calendar in order to be considered for any purpose, includ- ing a motion in the Special Term to open a default. 6. The court will not hear oral statements or arguments in respect of such engagements, excuses or motions, but will pass upon such written statements, or affidavits thereof, by indorse- ments thereon, after the call of the day calendar, and file the same with the clerk. 7. Not more than two causes will be held ready on the day calendar for one counsel in addition to the one he may be engaged in trying in this county, or if he be engaged out of this county, and in all cases the counsel who is to try the cause must be desig- nated on the call of the day calendar, if required by the court. 8. If a cause answered " ready " by the plaintiff be afterward answered " off " by the plaintiff, or made unduly obstructive by Local Rules of Peactice. 6i95 I tlie unreadiness of the plaintiff, it may be stricken from, or sent i;o the foot of the general calendar. 9. A calendar of causes noticed for a term will be made up and printed by the clerk; the numbering thereof following consecu- tively the highest number on the calendar of the last preceding term. A cause once placed on a calendar will retain its number until it is finally disposed of, unless, by directions of the court, a new calendar of all causes undisposed of is made up, in which event it will receive a new number. County Court Calendar Rules. 1. Civil causes vnll be tried at the opening of the term and iDefore the criminal business is taken up. 2. Causes appearing upon this calendar will be marked ready or off on the call. 3. The clerk vdll make up a day calendar pursuant to section 977 of the Code of Civil Procedure, as amended in 1903, of the first fifteen cases marked ready, also a reserved calendar of the following fifteen ready cases, and add to each from day to day so that there will be fifteen cases on the day calendar and fifteen cases on the reserve calendar each day. 4. Cases appearing for the first time on the reserve calendar will be passed for the day upon the appearance or written stipula- tion of attorneys. No cases can be set down for a specified day without the approval of the court, but cases will not be set down for days on the call of the day calendar. 5. A cause marked " off " the term will be placed upon the calendar for any subsequent term by the clerk, upon filing a stipulation, or a notice to the other side that the ease will be placed upon the calendar. Such stipulation or notice of restoral to be filed with the clerk (with proof of service); at least twelve days before the opening of the term. To Attorneys. The trial fee of one dollar is payable by the party bringing the same on, and must be paid to the clerk when the case is called and before proceeding to trial. The calendar fee of fifty cents must be paid to the clerk for the use of the sheriff by the party first putting the cause on calendar, 696 Wyoming County — Supreme Court. at the time of filing his note of issue. (See sub. 4, § 3307, Code Civ. Pro.) Unless this requirement is observed, causes cannot be placed on the calendar. Notes of issue are required to be filed in the clerk's office tvi^elve days before the sitting of the court. Unless this rule is observed, causes cannot be entered on the calendar. Where a party has served a notice of trial, and filed a note of issue, for a term at which the case is not tried, it is not necessary for him to serve a new notice of trial or file a new note of issue for a succeeding term ; and the action must remain on the calen- dar until it is disposed of. (See chap. 61, Laws 1893.) Notes of issue should be written only on one side of the paper. To insure accuracy, names should be legibly written and spelled correctly. WYOMING COUNTY. [For Supreme Court rules applicable to Wyoming county, see under Allegany county.]. THE JUDICIARY OF THE STATE OF NEW YORK. ARTICLE VI OF THE CONSTITUTION OF THE STATE OF NEW YORK. Aeticle VI. Supreme Court; how constituted; judicial districts. — Section 1. The Supreme Court is continued with general jurisdiction in law and equity, subject to such appellate jurisdiction of the Court of Appeals as now is or may be prescribed by law not inconsistent with this article. The existing judicial districts of the State are continued until changed as hereinafter provided. The Supreme Court shall consist of the justices now in office, and of the judges transferred thereto by the fifth section of this article, all of whom shall continue to be justices of the Supreme Court during their respective terms, and of twelve additional justices who shall reside in and be chosen by the electors of, the several existing judicial districts, three in the first district, three in the second, and one in each of the other districts; and of their successors. The successors of said justices shall be chosen by the electors of their respective judicial districts. The legis- lature may alter the judicial districts once after every enumera- tion under the Constitution, of the inhabitants of the State, and thereupon reapportion the justices to be thereafter elected in the districts so altered. The legislature may from time to time in- crease the number of justices in any judicial district, except that the number of justices in the first and second district or in any of the districts into which the second district may be divided, shall not be increased to exceed one justice for each eighty thou- sand or fraction over forty thousand of the population thereof, as shown by the last State or federal census or enumeration, and except that the number of justices in any other district shall not be increased to exceed one justice for each sixty thousand or fraction over thirty-five thousand of the population thereof as shown by the last State or Federal census or enumeration. The legislature may erect out of the Second Judicial District as now constituted another judicial district and apportion the justices [697] 698 Judiciary of State or New York. in o£Sce between the districts, and provide for tlie election of additional justices in the new district not exceeding the limit herein provided. Judicial departments; Appellate Division, how constituted; Governor to designate justices; reporter; time and place of hold- ing Courts. — ' § 2. The legislature shall divide the State into four judicial departments. The first department shall consist of the county of New York; the others shall be bounded by county lines, and be compact and equal in population as nearly as may be. Once every ten years the legislature may alter the judicial departments, but without increasing the number thereof. There shall be an Appellate Division of the Supreme Court, consisting of seven justices in the first department, and of five justices in each of the other departments. In each department four shall constitute a quorum, and the concurrence of three shall be neces- sary to a decision. No more than five justices shall sit in any case. Erom all the justices elected to the Supreme Court the Governor shall designate those who shall constitute the Appellate Division in each department; and he shall designate the pre- siding justice thereof, who shall act as such during his term of office, and shall be a resident of the department. The other justices shall be designated for terms of five years or the unex- pired portions of their respective terms of office, if less than five years. From time to time as the terms of such designations expire, or vacancies occur, he shall make new designations. A majority of the justices so designated to sit in the Appellate Division, in each department shall be residents of the department. He may also make temporary designations in case of the absence or inability to act of any justice in the Appellate Division, or in case the presiding justice of any Appellate Division shall certify to him that one or more additional justices are needed for the speedy disposition of the business before it. Whenever the Ap- pellate Division in any department shall be unable to dispose of its business within a reasonable time, a majority of the presid- ing justices of the several departments at a meeting called by the presiding justice of the department in arrears may transfer any pending appeals from such department to any other depart- ment for hearing and determination. No justice of the Appel- JuBiciAEY OF State of New Yoek. 699 late Division shall, within the department to which he may be designated to perform the duties of an appellate justice, exercise any of the powers of a justice of the Supreme Court, other than those of a justice out of Court, and those pertaining to the Appel- late Division, or to the hearing and decision of motions submitted by consent of counsel, but any such justice, when not actually engaged in performing the duties of such appellate justice in the department to which he is designated, may hold any term of the Supreme Court and exercise any of the powers of a justice of the Supreme Court in any county or judicial, district in any other department of the State. From and after the last day of December, eighteen hundred and ninety-five, the Appellate Di- vision shall have the jurisdiction now exercised by the Supreme Court at its General Terms and by the General Terms of the Court of Common Pleas for the city and county of New York, the Superior Court of the city of New York, the Superior Court of Buffalo and the city of Brooklyn, and such additional juris- diction as may be conferred by the legislature. It shall have power to appoint and remove a reporter. The justices of the Appellate Division in each department shall have power to fix the times and places for holding 'Special Terms therein, and to assign the justices in the departments to hold such terms; or to make rules therefor. Judge or justice not to sit in reviejv; testimony in equity cases. — § 3. No judge or justice shall sit in the Appellate Division or in the Court of Appeals in review of a decision made by him or by any Court of which he was at the time a sitting member. The testimony in equity cases shall be taken in like manner as in cases at law; and, except as herein otherwise provided, the legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and in equity that it has here- tofore exercised. Terms of office; vacancies, Jiow filled. — § 4. The official terms of the justices of the Supreme Court shall be fourteen years from and including the first day of January next after their election. When a vacancy shall occur otherwise than by expiration of term in the offijce of justice of the Supreme Court the same shall be 700 JuDiciAEY OF State of JSTew Yoek. filled for a full term, at the next general election, happening not less than three months after such vacancy occurs; and, until the vacancy shall be so filled, the Governor by and with the advice and consent of the Senate, if the Senate shall be in session, or if not in session the Governor, may fill such vacancy by appoint- ment, which shall continue until and including the last day of December next after the election at which the vacancy shall be filled. City Oourts abolished; judges hecome justices of Supreme Court; salaries; jurisdiction vested in Supreme Court. — § 5. The Superior Court of the city of New York, the Court of Com- mon Pleas for the city and county of ISTew York, the Superior Court of Buffalo, and the city Court of Brooklyn, are abolished from and after the first day of January, one thousand eight hun- dred and ninety-six, and thereupon the seals, records, papers and documents of or belonging to such Courts, shall be deposited in the offices of the clerks' of the several counties in which said Courts now exist; and all actions and proceedings then pending in such Courts shall be transferred to the Supreme Court for hearing and determination. The judges of said Courts in office on the first day of January, one thousand eight hundred and ninety-six, shall, for the remainder of the terms for which they were elected or appointed, be justices of the Supreme Court; but they shall sit only in the counties in which they were elected or appointed. Their salaries shall be paid by the said counties respectively, and shall be the same as the salaries of the other justices of the Su- preme Court residing in in the same counties. Their successors shall be elected as justices of the Supreme Court by the electors of the judicial districts in which they respectively reside. The jurisdiction now exercised by the several Courts hereby abolished, shall be vested in the Supreme Court. Appeals from inferior and local Courts now heard in the 'Court of Common Pleas for the city and county of New York and the Superior Court of Buffalo, shall be heard in the Supreme Court in such manner and by such justice or justices as the Appellate Divisions in the respective departments which include New York and Buf- fallo shall direct, unless otherwise provided by the legislature. JuDiciAEY OF State of New Yoek. YOl Circuit Courts and Courts of Oyer and Terminer abolished. — § 6. Circuit Courts and Courts of Oyer and Terminer are abol- ished from and after the last day of December, one thousand eight hundred and ninety-five. All their jurisdiction shall there- upon be vested in the Supreme Court, and all actions and pro- ceedings then pending in such Courts shall be transferred to the Supreme Court for hearing and determination. Any justice of the Supreme Court, except as otherwise provided in this article, may hold Court in any county. Court of Appeals. — § 7. The Court of Appeals is continued. It shall consist of the chief judge and associate judges now in office, who shall hold their offices until the expiration of their respective terms, and their successors, who shall be chosen by the electors of the State. The official terms of the chief judge and associate judges shall be fourteen years from and including the first day of January next after their election. Five members of the Court shall form a quorum, and the concurrence of four shall he necessary to a decision. The Court shall have power to ap- point and to remove its reporter, clerk and attendants. When- ever and as often as a majority of the judges of the Court of Appeals shall certify to the Governor that said Court is unable, by reason of the accumulation of causes pending therein, to hear and dispose of the same with reasonable speed, the Governor shall designate not more than four justices of the Supreme Court to serve as associate judges of the Court of Appeals. The jus- tices so designated shall be relieved from their duties as justices of the Supreme Court and shall serve as associate judges of the Court of Appeals until the causes undisposed of in said Court are reduced to two hundred, when they shall return to the Supreme Court. The Governor may designate justices of the Supreme Court to fill vacancies. ISTo justice shall serve as associate judge of the Court of Appeals except while holding the office of justice of the Supreme Court, and no more than seven judges shall sit in any case. Vacancy in Court of Appeals, how filled. — § 8. When a va- cancy shall occur otherwise than by expiration of term, in the office of chief or associate judge of the Court of Appeals, the same 702 JuDiciAEY OF State of J^Tew Yoek. stall be filled, for a full term, at the next general election happen- ing not less than three months after such vacancy occurs; and until the vacancy shall he so filled, the Governor, by and with the advice and consent of the Senate, if the Senate shall be in session, or if not in session the Governor, may fill such vacancy by appointment. If any such appointment of chief judge shall be made from among the associate judges, a temporary appoint- ment of associate judge shall be made in like manner ; but in such case, the person appointed chief judge shall not be deemed to va- cate his ofiice of associate judge any longer than until the expira- tion of his appointment as chief judge. The powers and jurisdiction of the Court shall not be suspended for want of appointment or election, when the number of judges is sufficient to constitute a quorum. All appointments under this section shall continue until and including the last day of December next after the election at which the vacancy shall be filled. Jurisdiction of Court of Appeals. — § 9. After the last day of December, one thousand eight hundred and ninety-five, the juris- diction of the Court of Appeals, except where the judgment is of death, shall be limited to the review of questions of law. !N^o iinanimous decision of the Appellate Division of the Supreme Court that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the Court, shall be reviewed by the Court of Appeals. Except where the judgment is of death, appeals may be taken, as of right, to said Court only from judgments or orders entered upon decisions of the Appel- late Division of the Supreme Court, finally determining actions or special proceedings, and from orders granting new trials on exceptions, where the appellants stipulate that upon affirmance, judgment absolute shall be rendered against them. The Appel- late Division in any department may, however, allow an appeal upon any question of law which, in its opinion, ought to be re- viewed by the Court of Appeals. The legislature may further restrict the jurisdiction of the Court of Appeals and the right of appeal thereto, but the right to appeal shall not depend upon the amount involved. The provisions of this section shall not apply to orders made or judgments rendered by any General Term before the last day of JuDiciAEY OF State of New York. 703 December, one thousand eight hundred and ninety-five, but ap- peals therefrom may be taken under existing provisions of law. Judges not to hold any other office. — § 10. The judges of the Court of Appeals and the justices of the Supreme Court shall not hold any other office or public trust. All votes for any of them, for any other than a judicial oflBce, given by the legisla- ture or the people, shall be void. Removal of judges. — § 11. Judges of the Court of Appeals and justices of the Supreme Court may be removed by concur- rent resolution of both houses of the legislature, if two-thirds of all the members elected to each house concur therein. All other judicial officers, except justices of the peace and judges or jus- tices of inferior Courts not of record, may be removed by the Senate, on the recommendation ol the Governor, if two-thirds of all the members elected to the Senate concur therein. But no officer shall be removed by virtue of this section except for cause, which shall be entered on the journals, nor unless he shall have been served with a statement of the cause alleged, and shall have had an opportunity to be heard. On the question of removal, the yeas and nays shall be entered on the journal. Compemsation; age restriction; assignment hy Gomemor. — § 12. ISTo person shall hold the office of judge or justice of any court longer than until and including the last day of December next after he shall be seventy years of age. Each justice of the Supreme Court shall receive from the State the sum of ten thou- sand dollars per year. Those assigned to the Appellate Divisions in the Third and Fourth Departments shall each receive in addi- tion the sum of two thousand dollars, and the .presiding justices thereof the sum of two thousand five hundred dollars per year. Those justices elected in the First and Second Judicial Depart- ments shall continue to receive from their respective cities, coun- ties or districts, as now provided by law, such additional compen- sation as will make their aggregate compensation what they are now receiving. Those justices elected in any judicial depart- 104: Judiciary of State of New Yoek. ment other than the first or second, and asisigned to the Appel- late Divisions of the First and Second Departments shall, while so assigned, receive from those departments, respectively, as now provided by law, such additional sum as is paid to the justices of those departments. A justice elected in the Third or Fourth Department assigned by the Appellate Division or designated by the Governor to hold a trial or special term in a judicial district other than that in which he is elected shall receive in addition ten dollars per day for expenses while actually so engaged in holding such term, which shall be paid by the State and charged upon the judicial district where the service is rendered. The compensation herein provided shall be in lieu of and shall exclude all other compensation and allowance to said justices for expenses of every kind and nature whatsoever. The provisions of this section shall apply to the judges and justices now in office and to those hereafter elected. Trial of impeachments. — § 13. The Assembly shall have the power of impeachment, by a vote of a majority of all the mem- bers elected. The Court for the trial of impeachments shall be composed of the president of the Senate, the senators, or the major part of them, and the judges of the Ctiurt of Appeals, or the major part of them. On the trial of an impeachment against the Governor or Lieutenant-Governor, the Lieutenant-Governor shall not act as a member of the Court. No judicial officer shall exercise his office, after articles of impeachment against him shall have been preferred to the Senate, until he shall have been ac- quitted. Before the trial of an impeachment the members of the Court shall take an oath or affirmation truly and impartially to try the imipeachment according to the evidence, and no person shall be convicted without the concurrence of two-thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office, or removal from office and disqualification to hold and enjoy any office of honor, trust or profit under this State ; but the party impeached shall be liable to indictment and punishment according to law. County Courts. — § 14. The existing County Courts are con- tinued, and the judges thereof now in office shall hold their offices JuDiciAEY OF State of New Yoek. 705 until the expiration of their respective terms. In the county of Kings there shall be two county judges and the additional county judge shall be chosen at the next general election held after the adoption of this article. The successors of the several county judges shall be chosen by the electors of the counties for the term of six years. County Courts shall have the powers and jurisdiction they now possess, and also original jurisdiction in actions for the recovery of money only, where the defendants re- side in the county, and in which the complaint demands judg- ment for a sum not exceeding two thousand dollars. The legis- lature may hereafter enlarge or restrict the jurisdiction of the County Courts, provided, however, that their jurisdiction shall not be so extended' as to authorize an action therein for the re- covery of money only, in which the sum demanded exceeds two thousand dollars, or in which any person not a resident of the county is a defendant. Courts of Sessions, except in the county of New York, are abolished from and after the last day of December, one thousand eight hundred and ninety-five. All the jurisdiction of the Court of Sessions in each county, except the county of ISTew York, shall thereupon be vested! in the County Court thereof, and all actions and proceedings then pending in such Courts of Sessions shall be transferred to said County Courts for hearing and determina- tion. Every county judge shall perform such duties as may be required by law. His salary shall be established by law, payable out of the county treasury. A county judge of any county may hold County iCourts in any other county when requested by the judge of such other county. Surrogates' Courts; surrogates, their powers and jurisdiction; vacancies. — § 15. The existing Surrogates' Courts are contin- ued, and the surrogates now in office shall hold their offices until the expiration of their terms. Their successors shall be chosen by the electors of their respective counties, and their terms of office shall be six years, except in the county of New York, where they shall continue to be fourteen years. Surrogates and Surro- gates' Courts shall have the jurisdiction and powers which the surrogates and existing Surrogates' Courts now possess, until otherwise provided by the legislature. The county judge shall 45 ' 706 Judiciary of State of New Yoek. be surrogate of his county, except where a separate surrogate has been or shall be elected. In counties having a population exceeding forty thousand, wherein there is no separate surrogate, the legislature may provide for the election of a separate officer to be surrogate, whose term of office shall be six years. When the surrogate shall be elected as a separate officer his salary shall be established by law, payable out of the county treasury. ISfo county judge or surrogate shall hold office longer than until and includ- ing the last day of December next after he shall be seventy years of age. Vacancies occurring in the office of county judge or sur- rogate shall be filled in the same manner as like vacancies occur- ring in the Supreme Court. The compensation of any county judge or surrogate shall not be increased or diminished during his term of office. For the relief of Surrogates' Courts the leg- islature may confer upon the Supreme iCourt in any county hav- ing a population exceeding four hundred thousand, the powers and jurisdiction of surrogates, with authority to try issues of fact by jury in probate cases. Local judicial officers.— § 16. The legislature may, on appli- cation of the board of supervisors, provide for the election of local officers, not to exceed two in any county, to discharge the duties of county judge and of surrogate, in cases of their ina- bility or of a vacancy, and in such other eases as may be provided by law, and to exercise such other powers in special cases as are or may be provided by law. Justices of the peace; District Court' justices. — § 17. The electors of the several towns shall, at their annual town meetings, or at such other time and in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be four years. In case of an election to fill a vacancy occurring before the expiration of a full term, they shall hold for the residue of the unexpired term. Their number and classification may be regulated by law. Justices of the peace and judges or justices of inferior Courts not of record, and their clerks, may be re- moved for cause, after due notice and an opportunity of being heard by such Courts as are or may be prescribed by law. Jus- tices of the peace and District Court justices may be elected in Judiciary of State of New Yoek. 707 the different cities of this State in such manner, and with such powers, and for such terms, respectively, as are or shall he pre- scrihed hy law ; all other judicial officers in cities, whose election or appointment is not otherwise provided for in this article, shall he chosen by the electors of such cities, or appointed by some- local authorities thereof. Inferior local Courts. — § 18. Inferior Courts of civil and criminal jurisdiction may be established by the legislature, but no inferior local Court hereafter created shall be a Court of record. The legislature shall not hereafter confer upon any in- ferior or local Court of its creation, any equity jurisdiction or any greater jurisdiction in other respects than is conferred upon County Courts by or under this article. Except as herein other- wise provided, all judicial officers shall be elected or appointed i at such times and in such manner as the legislature may direct.. Clerics of Courts. — § 19. Clerks of the several counties shall be clerks of the Supreme Court, with such powers and duties as shall be prescribed by law. The justices of the Appellate Division in each department shall have power to appoint and to remove a clerk, who shall keep his office at a place to be desig- nated by said justices. The clerk of the .Court of Appeals shall keep his office at the seat of government. The clerk of the Court of Appeals and the clerks of the Appellate Division shall receive compensation to be established by law and paid out of the public treasury. No judicial officer, except justice of the peace, to receive fees; not to act as attorney or counselor. — § 20. No judicial officer, except justices of the peace, shall receive to his own use any fees or perquisites of office ; nor shall any judge of the (Court of Ap- peals, or justice of the Supreme Court, or any county judge or surrogate hereafter elected in a county having a population ex- ceeding one hundred and twenty thousand, practice as an attor- ney or counselor in any Court of record of this State, or act as referee. The legislature may impose a similar prohibition upon county judges and surrogates in other counties. No one shall be eligible to the office of judge of the Court of Appeals, justice 708 JuDiciAEY OF State of New York. of the Supreme Court, or, except in the county of Hamilton, to the office of county judge or surrogate, who is not an attorney and counselor of this State. Pvhlicaiion of statutes. — § 21. The legislature shall provide for the speedy publication of all statutes, and shall regulate the reporting of the decisions of the Courts ; but all laws and judicial decisions shall be free for publication by any person. Terms of office of present justices of the peace and local ju- dicial officers. — ■ § 2i2. Justices of the peace and other local ju- dicial officers provided for in sections seventeen and eighteen, in office when this article takes effect, shall hold their offices until the expiration of their respective terms. Courts of Special Sessions. — § 23. Courts of Special Sessions shall have such jurisdiction of offenses of the grade of misde- meanors as may be prescribed by law. AMENDED RULES OF PRACTICE IN FORECLOSURE CASES. The following form has been approved by the justices of the Supreme Court. To comply with the Amended Rules of Practice in foreclosure cases the judgment should contain immediately following the direction to sell and in substitution for the provisions now in use the following provisions: Under the direction of , Esq., who is hereby appointed referee for that purpose; that said referee give public notice of the time and place of such sale according to law and the course and practice of this court; that the plaintiff or any other party to this action may become the purchaser or purchasers on such sale ; that said referee execute to the purchaser or purchasers on such sale a deed of the premises sold; that such referee on receiving the proceeds of sale forthwith pay therefrom the taxes, assessments and water rents which are or may become liens on the premises at the time of sale. That said referee then deposit the balances of such proceeds of sale in * j. . . . and shall thereafter make the following payments, and his checks drawn for that purpose shall be paid by the said depository: First. — The sum of $50 to the said referee for his fees herein. Second. — Advertising expenses as shown on the bills presented and certified by the said referee to be correct, and duplicate copies of which shall be left with said depository. * A bank or trust company authorized to receive on deposit court funds. Amended Eules of Practice in Foeeclosube Cases. Third. — Said referee shall also pay to the plaintiff the sum of . . . .,. .,. ., dollars, adjudged to the plaintiff for his costs and dishursements in this action, with interest thereon from the date hereof, together with an additional allow- ance of dollars hereby awarded to the plaintiff, in addition to costs, with interest thereon from the date thereof; and also dollars, the said amount so reported due as aforesaid, together with the legal interest thereon from the date of said report, or so much thereof as the purchase money of the mortgaged premises will pay of the same. Fourth. — If such referee intends to apply for a further allow- ance for his fees, he may leave upon deposit such amount as will cover such additional allowance, to await the further order of the court thereon, after application duly made. INDEX TO THE RULES. [See index to the notes, post, page 735.] PAGE. ABSENTEE — Defendant in action for the forecloauxe of mortgage — ■ proof required on a reference on default 357 ACKNOWLEDGMEJST — Bonds and undertakings and other securities in writing must be duly proved or acknowledged 56 Of consent to the payment of money out of court 91 ADDITIONAL ALLOWANCE. See Aixowance. ADMISSION — Of attorneys 31 AFFIDAVIT — Form of, to be used in proceedings for the examination of a witness within, where his, testimony is for use without, the State. 121 Of service of a summons by a person other than the sheriff — form of. 123 Must be folioed and fairly and legibly written or printed — waiver of the objection 142 F»r order extending time — former extensions to be stated 159 Notice of application therefor 159 On application for ex parte order, what to state 161 On motion to change venue 318 What affidavit required to entitle a guardian ad litem to compensa- tion 339 Used to procure an order for the examination of a party before trial — what to contain 452 Filing of. See Filing. AFFIDAVIT OF MERITS — Advice of counsel, how stated in 157 Form of 157 AGREED CASE — Submitted under section 1279 of the Code — an enu- merated motion 289 AGREEMENT — Between parties or attorneys to be in writing 91 ALLOWANCE — Where to be applied for 305 To H. receiver for expenses paid, in reference to the employment of counsel 451 AMENDMENTS — To a case. See Case. ANNUITY — Rules for computing the value of 464, 465 ANNUITY TABLES 463, 465 ANNULMENT — ^ Of a marriage — a judgment by default or by consent not allowable 268 APPEAL — Statement, as a substitute for voluminous documents read upon non-enumerated motions 257 By virtue of sections 1346 and 1349 of the Code — an enumerated motion . . 289 [709] '710 Index to Rules. [See index to the notes, post, page 735.] APPEAL — ( Continued ) : page. From judgment sustaining or overruling demurrers — an enumerated motion 289 From final order and decree of Surrogate's Court — an enumerated motion 289 From judgment or order granting or refusing a new trial in an inferior court — an enumerated motion 289 Papers on, by whom furnished 296 Printed copies of cases and points to be furnished 296 Papers to he furnished on appeals from non- enumerated motions.... 296 Dismissal of the appeal for a failure to serve papers 296 Non-enumerated motions and appeals from orders, when heard in the Appellate Division 305 Default, how taken 305 From orders and on non-enumerated motions — but one counsel on each aide shall be heard, not more than thirty minutes 317 Hearing at the Appellate Division or at Special Term — not more than one counsel shall be heard on each side, nor more than one hour each 317 Motion to amend a justice's ireturn where the County Court cannot act — ' when to be noticed 317 Appeals from City Court of New York and Municipal Courts, etc., rules as to 467 APPEARANCE — Notice of appearance, not alone sufficient in an action to obtain a divorce or separation 417 APPELLATE DIVISION — Clerk of — filing certificate of law examiners and of evidence of character with 32 Duty of the clerk of, to keep certain books 65 Papers in cases pending in, to be filed with the clerk of such division. 45 It may specify books to be kept in each department 64 Non-enumerated motions may be noticed for any motion day in the term 146 Calendar — • notes of issue, when to be filed 291 Separate calendar for non-enumerated motions 291 Preferred cases 292 Rviles in each department 292 Judgment by default 292 Appeal, twice passed, dismissed 292 Papers on apjieal to, by whom furnished 296 Printed copies of ease and points to be furnished 296 Papers to be furnished on appeal from non-enumerated motions 296 Dismissal of the appeal for a failure to serve papers 299 In any department may make rules as to the excliange of briefs, etc. 304 Non-enumerated motions in, when heard 305 Default, how taken in 305 Index to Rules. 711 [See index to the notes, post, page 735.] APPELLATE DIVISION— (Continued) : pace. In the first department authorized to change the place at which judicial sales shall be made 376 In each department, and the various courts of record, authorized to make further rules 460 APPELLATE DIVISION RULES — First department 501 Second department 507 Third department 517 Fourth department 522 ARGUMENT — Of causes upon the calendar of the Trial Term or Special Term, for the trial of equity cas,es 262 Notice of, at Special or Trial Term 267 Effect of a failure to appear 267 Length of notice 267 In Appellate Division or at Special Term — limitation as to the number of, and time of hearing, counsel 317 ARREST — Order of — petition or affidavit on vphich it is granted to be filed within ten days 54 Undertaking on, to be forthwith filed 54 Order to state grounds on which granted 94 A case in which the defendant is under arrest, preferred 262 ASSIGNMENT — Of mortgage to be filed or recorded before conveyance in mortgage foreclosure actions — ^ expenses allowed in costs 395 ATTACHMENT — Petition or affidavit on which it is granted to be filed within ten days 54 Undertaking on, to be forthwith filed 54 Against sheriff for not returning process or other paper 60 Order to state grounds on which granted 94 A case in which it has been issued is preferred 262 ATTORNEY. See Attoenets and Cottnselors. ATTORNEY-GENERAL — Action for sequestration brought by, in be- half of the People — motion for the appointment of a receiver — where made 450 Effect of, on subsequent suits 450 Removal of the receiver 451 ATTORNEYS AND COUNSELORS — Admission of, to practice 31 Names and addresses of attorneys to be indorsed or subscribed on papers aerved or filed 45 Cannot be sureties on any undertaking or bond required by law or be bail in any civil or criminal case or proceeding 56 Change of attorneys — how made 79 Eixamination of witnesses and summing up — ^time allowed — taking of testimony 168 Limitation as to the hearing of counsel at the Appellate Division or »t Special Term 317 713 Index to Rules. [See index to the notes, post, page 735.] ATTORNEYS AND COUNSELORS — (Continued) : page. No perBon shall be appointed sole referee, unless he be an attorney of the court in good standing 459 Power of a receiver to employ counsel 461 AUCTION — Sale at auction of desperate debts and doubtful claims to personal property, by the receiver of a debtor's estate 432 AUTHORITIES — Citation of, to be from official reports 304 BAIL BOND. See Undertaking. BILL — Must be folioed and fairly and legibly written or printed — ■ waiver of the objection 142 Of exceptions. 'See Case and Exceptions. BOND. 'See Undebtaking. BOOKS — To be kept by the clerk of each Appellate Division 64 To be kept by the clerks of the courts, other than the Appellate Division 64 To be kept in each department, may be specified by the Appellate Ddvision 64 Discovery of — when compelled 95 Form of application for 119 Order, what to contain — it operates as a stay 120 To be produced under a subpoena to take testimony within, for use ■without, the State 121 BRIEF. See Points. BUFFALO — SaJe of lands in the city of Buffalo under a judgment or order — time and place of 376 CALENDAR — Practice at Trial Term or Special Term for the trial of equity cases 262 Of the Appellate Division — note of issue, when to be filed 291 Date of issue 291 Separate calendar for non- enumerated motions 291 Preferred eases 292 Rules in each department 292 Judgment by default 292 Appeal, twice passed, to be dismissed 292 A cause may be struck from the calendar for a neglect to furnish papers on an enumerated motion 296 CARLISLE TABLE OF MORTALITY 465 CASE — Must be folioed and fairly and legibly written or printed — waiver of the objection 142 Where specific questions of fact have been tried by a jury or a, referee, and a new trial is applied for — ^settlement of 18S Making and settlement of amendments thereto 1*4 Reserved for argument and special verdicts — settlement of — parties may agree on the facts proven ■'"4 Omitting to make — effect of *"" Index to Rules. 713 [See index to the notes, post, page 735.] CASE— (Continued) : page. To be in narrative form — resettlement of, if it is not — exhibits not to be printed at length 257 An enumerated motion 289 Papers to be furnished on enumerated motions 296 Neglect to furnish papers 29S The cause may be struck from the calendar 296 Papers, by whom furnished 296 How printed and indexed 304 Number of copies to be delivered to the clerk of the Appellate Division 304 CASE AND EXCEPTIONS — Where specific questions of fact have been tried by a jury or a referee, and new trial is applied for — settlement of 185 Motions therefor to be made at Special Term 185 Making and settlement of — amendments thereto 194 Contents thereof — narrative form 257 Resettlement thereof, if it does not conform to Rule 34 258 Exhibits not to be printed at length 258 Papers to be furnished on enumerated motions 296 Neglect to furnish papers 296 Cause may be struck from calendar 296 Papers, by whom furnished 296 CERTIFICATE — Of the examiners for the admission of attorneys 31 Of the clerk on papers, used on a motion, to be filed in another coimty 45 CHANCERY PRACTICE — Applicable to cases not covered by the Gen- eral Rules of Practice i 461 CHANGE — Of attorneys, how made 79 CHARACTER — Filing evidence of the character of applicants for admis- sion as attorneys 31 CHILDREN — Questioning legitimacy of, in an action for divorce 431 CITATION — Of authorities, to be from oflacial reports 304 CITY COURT — Of the city of New York — rules of 547 CLAIMANT — For surplus moneys in mortgage foreclosure actions — notice of claim — notice of hearing 396 CLAIMS — Court of — rules of 593 Sale of doubtful claims by a receiver. See Receives. CLERK — Of the Appellate Division and of other courts — books to be kept by 64 Number of cases and points to be delivered to him 304 Duty of, to preparing a calendar for the Appellate Division. . . . 292 Filing certificates of bar examiners and of evidence of character with 31 Filing or recording in his office, of a mortgage and assignments be- fore conveyance in mortgage foreclosure actions 395 714 Index to Rules. [See index to the notes, post, page 735.] CLERK — ( Continued ) : page. Papers in coiu-ts of record, other than the Supreme Court and Surro- gate's Court, to be filed with the clerk of the court 45 Copy of pleadings or testimony in divorce suits not to be furnished. 431 See County Clehk. COHABITATION — Proof as to, in actions for divorce. See Divoecb. COMMISSION — Issued from a court without, to take the deposition of a witness within, the State 121 Time of service and settlement of interrogatories and cross-interrog- atories to be annexed thereto 144 Of lunacy — fees on executing it 415 Committee may pay costs, when 415 Special order of the court, when necessary 415 COMMITTEE — Of a lunatic — fees on executing a commission — when he may pay costs 415 Special order of the court, when necessary 415 COMPENSATION — Of a guardian ad litem — what affidavit required to entitle him to it 339 For executing a commission of lunacy 415 Committee may pay costs, when 415 Special order of the court, when necessary 415 COMPLAINT — For divorce. See Pleading. CONSENT — Of the party required to a change of attorneys 79 Between parties or attorneys to be in writing 91 To the payment of money out of court — to be acknowledged 94 CONTEMPT — Of court — when a witness will be punished for a failure to testify under a commission executed within, for use without, the State 122 CONTESTED MOTIONS — Where heard. See Motion. COPIES — Letter press or typewritten copies to be written or printed in black characters 142 Otherwise not to be filed or entered by the clerk 142 COBPORATION — Sequestration of the property of — motion for the appointment of a receiver — where made 450 Effect of, on subsequent suits 450 Removal of the receiver 450 COSTS — Additional allowance, where to be applied for 305 Of proceedings for the sale, mortgage or lease of the real estate of infants, what amount allowed 355 Expenses of filing or recording mortgage and assignments before conveyance in mortgage foreclosure actions, allowed in costs 395 Of executing a commission of lunacy 415 When committee may pay 415 When a, special order of the com-t is necessary 415 When they may be allowed to a receiver of a, debtor's estate 406 Index to Rules. 715 [See index to the notes, post, page 735.] COSTS — (Continued) : page. Of a receiver — security for the payment of, in an action brought by him 421 Allowed by the court to the guardian ad litem or recovered by the infant 339, 340 COUNSEL. See Attorneys and Coukseloes. COUNSELOR. See Attorneys and Counselors. COUNTY CLERK — Papers in the Supreme Court to be filed in the office of 45 See Clerk. COUNTY COURT — Motion to amend a justice's return on appeal where the County Court cannot act — when to be noticed 317 Order for payment of money out of court — what to specify 411 Account with a trust company 411 Statement of, to be made annually 411 Draft upon — what to be stated in — to be countersigned by justice 411 COURT OF CLAIMS — Rules of 593 COURT OF SPECIAL SESSIONS OF CITY OF NEW YORK — Rules of. 555 COURTS — Of record — papers in courts of record, other than the Su- preme Court and the Surrogate's Court, to be filed in the office of the clerk of the court 45 What book shall be kept by the clerks of 64 Payment of money out of court — consent thereto to be acknowl- ledged — applicant to be identified 94 Copy pleadings to be furnished for the use of the court to designate the parts admitted or controverted by the succeeding pleadings. . . 142 Order for payment of money out of court — what to specify 411 Account with a trust company 411 Statement of account to be made annually 411 Draft upon — wJiat to be stated in — to be countersigned by justice 411 Courts of record and the Appellate Division in each department authorized to make further rules 460 CROSS-INTERROGATORIES — In what time they must be served under a commission 144 CURTESY — Tenant by — payment to, of gross siun in lieu of life estate — amount, how ascertained 413 DATE — Of issue, where extension of time to plead is given 159 DEBTOR — A receiver of a debtor's estate may execute a lease not to exceed one year 432 Powers and duties of 432 To be allowed costs 432 When he may sell doubtful claims at auction 432 Security for the payment of the costs of an action brought by a receiver in supplementary procgedings 449 716 Index to Rules. [See index to the notes, post, page 735.] PAGE. DEFAULT — Judgment on failure to answer — where it may be applied for 163 In first district 163 In Bervice of a case or of amendments thereto or of notice of settle- ment thereof . 257 Judgment of reversal by, not allowed at the Appellate Division 292 Effect of a failure to file and serve the papers on appeal to the Appellate Division 296 Failure to answer on mortgage foreclosure — reference — what proof must be made — judgment 357 In an action to obtain a divorce or separation — reference on 417 Who may be referee 417 Proof of service of summons and complaint 417 Notice of appearance, etc., not sufficient 417 Plaintiff to be examined on oath 417 Failure of defendant to answer 417 Judgment by, in an action to annul a marriage — when granted — proof required 430 Judgment declaring a marriage void or granting a divorce, etc., not to be by default 431 No judgment to be entered except by order of the court 431 Proof taken as to the question of legitimacy, in an action for divorce. 431 DEPARTMENTS — Committee on character and fitness to be named by each, relative to the admission of attorneys 31 DEPOSITION — Of a witness to be taken within, for use without, the State — proceedings to punish for contempt 121 Must be folioed and fairly and legibly written or printed — waiver of the objection 142 Of a party before trial — affidavit on application for — what to state. 424 DISCOVERY — Of books, papers and documents — when compelled 95 Moving papers to state facts and be verified 119 Should be shown to be material 120 Order, what to contain — operates as a stay of proceedings 121 DISMISSAL — Of complaint, in case of a neglect to bring to trial an issue of fact 262 Of appeal, for a failure to file and serve papers 298 DIVORCE — Form of proof of service of the summons in an action for. 123 A judgment by default or by consent, not allowable 267 Reference on default in an action to obtain — who may be referee. 417 Proof of service of summons and complaint 417 Notice of appearance, etc., not sufficient 417 Complaint for divorce — averments in 417 Plaintiff to be examined on oath 417 Failure of defendant to answer 417 Index to Rules. Tl7 [See index to the notes, post, page 735.] DIVORCE — ( Continued ) : page. Answer in an action for — trial of the action 430 Judgment by default in an action to annul a marriage 430 When granted — proof required 430 Judgment declaring marriage void or granting a divorce, etc., not to be by default 431 Copy of pleadings or testimony not to be furnished 431 No judgment to be entered, except by order of the court 431 Questioning legitimacy of children 431 DOCKET — Of judgments in the offices of the clerks of the courts during office houra 65 DOCUMENTS — Discovery of — when compelled 95 Form of application for 119 Order for, what to contain — it operates as a stay 120 To be produced imder a subpoena to take testimony within, for use without, the State 122 Settlement of a statement of voluminous documents used on non- enumerated motions 257 DOUBTFUL CLAIMS — Sale of, at auction by a receiver. See KECEaVEB. DRAFT — For payment of money out of court — what to be stated in — to be countersigned by justice 411 DRUNKARD — Sale, mortgage or lease of a drunkard's real estate — petition for, what to state — previous application 347 Contents of referee's report thereon — proof of value 352 Payment of fees on executing a commission. Se« Lunacy. ENDORSEMENT — Of papers by the attorneys 45 ENTRY — Of judgments in the offices of the clerks of the courts during office hours 65 ENUMERATED MOTIONS. See Motion. EQUITY TERM — Calendar practice at 262 EVIDENCE — Proceedings to take the testimony of a witness within, for use without, the State 121 How taken on a. trial 168 Testimony — taken before referee — when to be signed 173 Required on application for a judgment by default in an action to annul a marriage 430 Oopy of pleadings or testimony in divorce suits not to be furnished. . 431 Where the legitimacy of children is questioned in an action for divorce 431 Examination of a party before trial — 'the moving papers, what to state 452 EX PARTE ORDER. See Obdee. EXAMINATION — For admission of attorneys and counselors 31 Of a party before trial — affidavits on application for, what to state . 452 EXAMINERS — State Board of — rules of 610 718 Index to Kules. [See index to the notes, post, page 735.] PAGE. EXCEPTIONS — Must be folioed and fairly and legibly written or printed — waiver of the objection 142 To a referee's report to be filed within eight days 173 An enumerated motion 280 See Case and Exceptions. EXECUTION — Appointment of a receiver in proceedings supplementary to. "See Receivee. EXHIBITS — In a case or bill of exceptions not to be printed at length. . 257 EXTENSION — Of time — form of affidavit for — former extension to be stated — notice of application 159 See Oedeb; Time. EXTRA ALLOWANCE. See Aixowanoe. FEES. See Compensation. FEIGNED ISSUES — Application for a new trial of, to be made on a ease or exceptions or the minutes 185 Settlement of, where the trial of issues of fact is not provided for by the Code 185 FILING- — 'With the Appellate Division of certificates of the law ex- aminers and of character 31 Of papers, when with the clerk of the Supreme Court 45 When in the office of the surrogate 45 When with the clerks of other courts of record 45 Where the place of trial is changed 45 With the clerk, of all papers read or used on a motion 49 An undertaking and affidavit, on which an injunction, attachment or order of arrest has been granted, must be filed 53 Pleadings and other proceedings, if not legibly written or printed and folioed, not to be filed by the clerk 142 Affidavit of merits, once filed sufficient 157 Of the report of a referee, in references other than for the trial of issues 173 Of a case or a case and exceptions within ten days after settlement. 255 Of mortgage and assignments, before conveyance in mortgage fore- closure actions — ■ expense allowed in costs 395 FIRST DEPARTMENT — Rules of the Appellate Division of 501 Surrogate's Court in the first department — rules of 528 City Court of New York — • rules of 547 FIRST JUDICIAL DISTRICT — Motion for an order or judgment — where heard 163 Motions therein — where heard 268 FOLIO — Pleadings, etc., must be foliOed — waiver of the objection 142 FORECLOSURE — Stay of sale in — notice of application therefor required 40* Of mortgage. 'See Moetqagb Fobeolosube. Index to Rules. 719 [See index to the notes, post, page 735.] PAGE. FOURTH DEPARTMENT — Rules of the Appellate Division of 521 GENERAL GUARDIAN. 'See Guardian. GENERAL RULES OF PRACTICE. See Rules. GUARDIAN — ' Appointment of a general guardian — contents of petition for 341 To give security before receiving the proceeds of sale of property of an infant 341 Duty of the court upon the presentation of a petition for the ap- pointment of a general guardian • 345 Investment of the funds of an infant by a general guardian 345 GUARDIAN AD LITEM — Who to be — qualifications of 333 Duties of — what affidavit required to entitle a guardian ad litem to compensation 339 To give security before receiving money or property of the infant . . 340 Entitled to costs and expenses, - allowed by the court or recovered by the infant 340 Security required of a special guardian appointed to sell an infant's real estate 353 HABITUAL DRUNKARD. "See Dkunkakd. HEARING — Where exceptions are iiled to the report of a referee, in references other than of the issues 173 Of counsel at the Appellate Division or Special Term limited 317 HUSBAND AND WIFE. See Divohce; Judgment. IDIOT — ■ Sale, mortgage or lease of an idiot's real estate — petition for, what to state — previous application . . . . , 347 Contents of referee's report thereon — proof of value 352 Payment of fees on executing a, commission. See Lunacy. ILLEGITIMACY. 'See Legitimacy. INCOMPETENT — ■ Sale, mortgage or lease of an incompetent's real estate — petition for, what to state — previous application 347 Contents of referee's report thereon ■ — ■ proof of value 352 Security required of special guardian 353 Proceeds of sale of real estate of, must be brought into court — • costs 355 When to be paid to general guardian — security required — con- tents of petition therefor 356 Payment of fees on executing a commission. See Lunacy. INDEFINITE MATTER — In pleading. 'See Pleading. INDEX — Of case — regulations as to 304 INDORSEMENT. 'See Endobsement. INFANT — Guardian ad litem of — who to be — qualifications of 333 Duties of a guardian ad litem — what affidavit required to en- title him to compensation 339 'i'20 Index to Rules. [See index to the notes, post, page 735.] INFANTS — ( Continued ) : page. Appointment of a general guardian for — contents of petition for 341 Duty of the court upon the presentation of a petition for tlie appointment of a general guardian 345 Investment of the funds of an infant by a general guardian. . . . 345 Security to be given by a general guardian of an infant 346 Sale, mortgage or lease of infant's real estate 347 Contents of referee's report thereon — proof of value 352 Moneys arising from sale of real estate of — when to be paid to general guardian — ■ Siecurity required — contents of petition therefor 356 Guardian ad Utem of, to give security before receiving infant's money or property 340 Security required of special guardian on sale of real estate of . . . 353 Proceeds of sale of real estate of, must be brought into court — costs 355 Where several infants are interested in the same premises as tenants in common, all must join in proceedings for its sale . . 355 Infant defendant in action for the foreclosure of mortgage — ■ proof required on a reference on default 357 Infant parties to action for partition — the petition must state whether they own any other lands in common 404 INJUNCTION — Petition or affidavit on which it is granted to be filed within ten days 53 Undertaking on, to be forthwith filed 53 Order to state grounds on which granted 94 INSOLVENT DEBTOR. See Debtor. INSPECTION — Of books, documents, etc., when compelled 95 Should be shown to be material 119 Order for, what to contain 120 It operates as a stay 121 INTERLOCUTORY REFERENCE. See Refebence. INTERKOGATOHIES — Time of service and settlement of the same under a commission 144 INVESTMENT — 0* the funds of an infant by a general guardian 346 IRREGULARITY — Where papers certified to the proper county are not entered there within ten days 50 That a bond or imdertaking is not forthwith filed 53 Where an application for an ex parte order fails, to state previous application 161 Where a judgment or order is granted in violation of Rule 26 163 To be specified in the notice or order to show cause 267 IRRELEVANT MATTER — Motion to strike out — within what time to be made — time to make such motion not to be extended except upon notice 148 Inbex to Eules. T21 [See index to the notes, post, page 735.] PAGE. ISSUE — Date of, where extension of time to plead is given 159 Note of, for the Appellate Division calendar, v?hen to be filed 291 Date of issue 291 ISSUE OF FACT — Neglect to bring to trial 262 ISSUE OF LAW — An enumerated motion 289 JUDGMENT — When to be entered and docketed in county clerk's office. 65 Must be folioed and fairlyl and legibly written or printed — ^waiver of the objection 142 For failure to answer — where it may be applied for Ifi3 In first district 163 Directing the payment of money or affecting the title to property, if founded on petition, may be enrolled and docketed 166 Orders for the payment of money may be docketed as 166 Of reversal by default, not allowed at the Appellate Division 292 On failure to answer on mortgage foreclosure — what must be shown on application therefor 357 For sale of mortgaged premises — contents of 374 By default in an action to annual a marriage — when granted — proof required 430 Declaring marriage void or granting a divorce, etc., not to be by default 431 Copy — • of pleadings or testimony not to be furnished 431 No judgment to be entered in a matrimonial action, except by order of the court 431 JUDICIAL SALE. See Sale. JUSTICE'S RETURN — On appeal — motion to amend, where the County Court cannot act — when to be noticed 317 JUSTIFICATION — Of sureties 56 Attorneys and counselors cannot be sureties 56 Of sureties on the bond of a special guardian in proceedings for the sale of real estate of infants 353 KINGS COUNTY — Sale of lands in the county of Kings under a judg- ment or order — time and place of 376 Motion for an order or judgment — where heard 163 Surrogate's Court in — Rules of , 543 LACHES — Neglect to bring to trial an issue of fact 262 LAW EXAMINERS — State board of — rules of 610 LEASE — Of real estate of infant's, lunatics, etc., what to state — previous application 347 Contents of referee's report thereon — proof of value 352 Of the real estate of infants — security required of special guardian. 353 Proceeds thereof must be brought into court — costs 355 Moneys arising from — when to be paid to general guardian — security required — contents of petition therefor 356 A receiver of a debtor's estate may execute a lease not to exceed one year 432 46 T22i Index to Rules. [See index to the notes, post, page 735.] pAei. LEGITIMACY — Of children — questioned in an action for divorce 431 LETTER-PRESS COPIES — To be written or printed in black characters — otherwise not to be filed or entered by the clerk 142 LIFE ESTATE — Gross sum in payment of — how ascertained 413 Rules for computing the value of 464, 465 LIFE TABLES 463, 466 LIS PENDENS — Filing of, must be shown on application for judgment on mortgage foreclosure 358 LUNATIC — Fees on issuing a commission of lunacy 415 Committee may pay costs, when 415 Special order of the court, when necessary 418 Sale, mortgage or lease of a lunatic's real estate — petition for, what to state — previous application 347 Contents of referee's report as to sale of real estate of — proof of value 352 Annulment of marriage with. See Divoece. MARRIAGE — Annulment of — a judgment by default or by consent not allowable 267 See DIVORCE; Sepaeation. MERITS — Affidavit of 157 MONEY — Payment of, out of court — consent thereto to be acknowl- edged 94 Applicant to be identified 94 Payment of — order or judgment directing, may be enrolled and docketed 166 Payment of, out of court — order what to specify 411 Account with a trust company 411 Statement of account to be made annually 411 Draft — what to be stated in — to be countersigned by justice. 411 In court — investment of — payment of gross sum in lieu of life estate — amount — how ascertained 413 MORTGAGE — On real property given as security — proof of the value required 56 It may be given as security by the general guardian of an infant 34S Of real estate of infants, lunatics, etc., petition for, what to state — previous application 347 Contents of referee's report thereon — proof of value 352 Of the real estate of infants — security required of special guardian. 353 Proceeds thereof must be brought into court — costs 35S Moneys arising from — when to be paid to general guardian — security required — contents of petition therefor 357 MORTGAGE FORECLOSURE — Failure to answer — reference — what proof must be made — judgment 357 Inbex to Ettlbs. 723 [See index to the notes, post, page 735.] MORTGAGE FORECLOSURE — (Continued) : pag». Sale of lands in the counties of New York and Kings and the city of Buffalo under a judgment or order — time and place of 376 Judgment for sale of mortgaged premises — contents of 374 Surplus money arising on — to whom to be paid 375 Mortgage and assignments to be filed or recorded before conveyance — expense allowed in costs 395 Application for surplus moneys — notice thereof — reference — searches — unsatisfied liens 398 Referee to be selected by the court 396 MOTION — Papers used on, to be filed in the proper county within ten days 49 Papers used on, to be certified to the proper county 49 Recital in the order of all papers used or read 49 For an attachment to compel a return by a sheriflf 52 For the payment of money out of court 94 Consent to be acknowledged 94 Applicant to be identified 94 For arrest, injunction or attachment 94 The grounds therefor must be stated in the order 94 For discovery — when granted 96 Moving papers, what to state and how verified 119 Order, what to contain — it operates as a stay. 120 To compel a witness to testify under a commission for use without the State — what the petition therefor must state 121 Not to be heard by the court where the pleadings and other pro- ceedings are not fairly and legibly written 142 Papers used must be folioed and fairly and legibly written or printed 142 Waiver of the objection 142 Non-enumerated motion, except at Appellate Division, must be noticed for the first day of the term, except suflScient cause be shown 146 In the Appellate Division it may be noticed for any motipn day. 146 To strike out irrelevant matter or to correct a pleading as indefinite, etc. — it must be noticed before answering and within twenty days — time extended only on notice 148 Service and filing of affidavit of merits may be shown by affidavit. 157 Ex parte — statement as to previous application 161 In first judicial district and Kings county for an order or judgment — where heard 168 Order directing the payment of monej' or affecting the title to real property may be enrolled and docketed 166 Order granted on petition must recite the names and descriptions of the petitioners and its date 165 7'24 Index to Eules. [See index to the notes, post, page 735.] MOTION — (Continued) : page. For an order granting or refusing a new trial, except on exceptions taken on the trial 184 The grounds thereof to be stated in the order 184 Notice of motion for a jury trial to be made within ten days after isaue joined 184 Papers to be served with such notice of motion 184 For extension of time to serve a case or amendments thereto, to be on notice 193 Statement of contents of voluminous documents used upon non- enumerated motions 258 For irregularity — the irregularity to be specified 274 ; In the first j udicial district — where heard 267 Notice for, at Special Term or Trial Term 267 Effect of a failure to appear 267 Length of time of notice 267 Enumerated motions, what are 289 Non-enumerated motions, what are 289 Contested motions — when not heard at Trial Term 289 Papers to be furnished on enumerated motions at Special Term. . . . 296 Neglect to furnish papers 296 A cause may be struck from the calendar 296 Papers, by whom furnished 296 Points, to contain a statement of facts 296 Enumerated — ^papers to be furnished on appeal to the Appellate Division 297 Non-enumerated — papers to be furnished on appeal to the Appellate Division 297 Non-enumerated motions and appeals from orders, when heard 305 Default, how taken 305 To amend a justice's return on appeal where the County Court can- not act — when to be noticed 317 To change venue — stay of proceedings on 318 AflSdavits on 318 For the payment of money out of court 386 For the appointment of a receiver on sequestration of the property of a corporation — where made 450 Effect of, on subsequent suits 450 Removal of the receiver 450 For the examination of a party before trial — the affidavits on such motion, what to state 452 gee OEDEaa. MUNICIPAL COURT OF THE CITY OF NEW YORK — Rules of 658 NARRATIVE FORM. See Case; Case and Exceptions. NEW TRIAL — Application for, where specific questions of fact have been tried by a jiu'y or a referee 184 ■ ■■ Index to Eules. '<'25 [See index to the notes, post, page 735.] NEW TRIAL— (Continued): p-^^ge. Grounds of an order granting or refusing a new trial, except on ex- ceptions taken on the trial, to be specified 18* Trial — settlement of issues 184 Notice — ■ of a motion for a trial by jury 184 Pa pers — to be served with such notice 184 Settlement — of the issues, or reference to settle them 184 Form, of settlement of the issues 184 NEW YORK CITY — Sale of lands in the county of New York under a judgment or order — time and place of 376 Order for payment of money out of court. See Payment. NEW YORK CITY COURT — Rules of 547 NON-ENUMERATED MOTION. See Motion. NONSUIT — Submitting to, before a referee 173 NORTHAMPTON TABLE OF MORTALITY 463 NOTICE — To sheriff to return process or other paper 52 Of non-enumerated motion — it must, except in Appellate Division, be for the first day of the term, unless sufficient cause be shown. . 14ft. In the Appellate Division for any motion day 146' Must be given of applications for extensions of time to serve a case or exceptions 19? Of settlement of a statement of voluminous documents used on non- enumerated motions 258 Of argument, and of motions at Special Term or Trial Terms 267 Effect of a failure to appear 267 Length of time of notice 267 Of motion for irregularity — the irregularity must be specified in the notice 267 Of motion in the first judicial district, to be for what term of the court 267 Of motion to amend a justice's return on appeal where the County Court cannot act — when to be noticed 317 Of claim to surplus moneys — filing of 399 Of hearing on applications for surplus moneys, to any person having or appearing to have an unsatisfied lien on the moneys. 396 Of stay of sale, required in actions for partition or foreclosure 408 Of pendency of action. See Lis Pendens. OFFICE ADDRESS — Or place of business to be indorsed on papers .... 45 OFFICER — Of any court — copy of pleadings or testimony in divorce suits not to be furnished by 431 OFFICIAL REPORTS — Citations in briefs, to be from 304 OFFICIAL SEARCH. See Search. OPINION — Of the court below to be added to a case on appeal from enumerated motions 297 Also on appeals from non-enumerated motions 297 7i26 Index to Kules. [See index to the notes, post, page 735.] PAGE. ORDER — Entry of — > all papers used or read to be specified therein .... 49 Clerk not to enter an order unless papers are filed 49 To be entered in the proper county within ten days 50 To show cause why an attachment should not issue to compel a sheriff to make return 60 Change of attorney must be made by 79 Mrecting payment of money out of court 411 Consents thereto must be acknowledged 94 The applicant must be identified 94 Agreements between parties or attorneys to be by order or in writing. 91 Of arrest, injunction or attachment to state the grounds thereof .... 94 For discovery — ^what to contain — it operates as a stay of pro- ceedings 120 To compel a witness to testify under a, commission for use without the State — what the petition therefor must state 121 Must be folioed and fairly and legibly written or printed 142 Waiver of the objection 142 Extending time — ■ affidavit for 159 Former extensions to be stated 159 Notice of application therefor 159 Ea> pa/rte — statement as to previous application 161 In the first judicial district and Kings county — where applied for.. 163 For the payment of money may be docketed as a judgment 166 Granted on petition, or relating thereto, must recite the names and descriptions of the petitioners and its date 165 Affecting the title to real property, may be enrolled and docketed as a judgment 166 Granting or refusing a new trial, except on exceptions taken on the trial 184 Grounds thereof to be specified therein 185 Motion for a jury trial to be made within ten days after issue joined . 185 Papers to be served with such notice of motion 185 Extending time — to serve case or amendments to be on notice 193 To show cause as a substitute for a notice of motion at Special or Trial Term — what must be stated in moving papers 267 Where returnable, except in the first judicial district 267 When, except in the first judicial district, it does not stay proceedings 267 To show cause in the first judicial district — where returnable 267 Appeal from, in the Appellate Division, when heard 305 Default, how taken 305 To stay proceedings with a view to change of venue 318 Affidavits on motion to change venue 318 For the payment of any money arising from the sale of the real estate of infants to general guardian — on what petition to be made 356 For payment of money out of court — what to specify 411 Index to Rules. 727 [See index to the notes, post, page 735.] ORDER — (Continued) : PAGE. Of the court — when necessary to authorize the payment of the fees on executing a commission of lunacy 415 Of arrest. See Areest. See Motion. PAPERS — Discovery of — when compelled 95 Form of application for 119 Order for, what to contain — ^it operates as a stay 121 To be produced under a subpoena to take testimony within, for use without, the State 121 Must be folioed and fairly and legibly written or printed — waiver of the objection 142 To be furnished on enumerated motions 296 On appeal, by whom furnished 297 Where filed 45 PARTITION — Te embrace all lands held in common 404 Statement required where infants are interested 404 References as to title 407 Stay of sale — notice of application therefor required 408 PARTY — ■ Name and address of the party, if he appears in person, to be indorsed and subscribed on papers served or filed 45 Consent of, required to a change of attorney 79 Compelled to make discovery of books, documents, etc 95 Examination of, before trial — moving papers, what to state 452 Plaintiflf in action for divorce — examination of, etc. See Divorce. PAYMENT — Of money — an order or judgment directing, may be en- rolled and docketed 166 Of money out of court — order, what to specify — account with a trust company 411 Statement of account to be made annually 41] Draft — what to be stated in — to be countersigned by justice ... 41 1 ■Consent thereto to be acknowledged 94 Applicant to be identified 94 Of gross sum in lieu of life estate — amount, how ascertained 413 PETITION — To compel a witness to testify under a commission for use without the State — ■ what it must state 121 Order granted on — to recite the names and descriptions of the peti- tioners and its date 165 Eficitals in — orders granted thereon 165 For the appointment of a general guardian — contents of 341, 346 For the sale of real estate of infants, lunatics, etc., what to state — previous application 347 For the payment of moneys arising from the sale of real estate of in- fants — contents thereof 356 PLACE — Of trial. See Venue. T28 Index to Rules. [See index to the notes, post, page 735.] FAeE. PLEADINGS — Must be folioed and be fairly and legibly written or printed 142 If not, the clerk is not to iile the same 142 To be furnished to the court, to have designated thereon the part* admitted or controverted by the succeeding pleadings 142 A motion to strike out irrelevant matter, or to make a pleading definite, must be noticed before answering and within twenty days — time extended only on notice 148 Complaint for divorce — averments in 391 Answer in an action for divorce — trial thereof 430 Allegations of a complaint in an action for divorce, where the legiti- macy of children is questioned 431 Copy of pleadings or testimony in divorce suits not to be furnished. . 431 POINTS — To contain a statement of facts 296 How printed 304 Citations to be from official reports 304 Number of copies to be delivered to the clerk of the Appellate M- vision 304 Rules in relation to the exchange of, may be made by the Appellate Division in any department 303 PRACTICE — In cases not covered by the General Rules of Practice 461 PREFEEENCE — A case where an attachment has issued or the defendant is under arrest is preferred 262 Cases entitled to, are to be placed separately on the calendar of the Appellate Division 291 PREVIOUS APPLICATION — To be stated in moving papers, when an ex parte application is made for an order 161 When an application is made for an order extending time 161 PRINTING — ■ Of cases and points — regulations as to 304 PROCESS — ^Service of a summons by a person other than the sheriff — proof of, what to state 123 Proof of service of summons and complaint in an action to obtain a divorce or separation 417 PROPERTY. See Real Pbopertt. REAL PROPERTY — Petition for the sale of the real estate of infants, lunatics, etc., what to state — previous application 347 iSecurity required of a. special guardian in proceedings for the sale of the real estate of infants 327 Order or judgment aflfecting, may be enrolled or docketed 166 Where several infanta are interested in the same premises as tenants in common all must join in proceedings for its sale 356 Judgment for sale of mortgaged premises — contents of — surplus moneys arising on 374 Partition of, to embrace all lands held in common 404 Statement required where infants are interested 404 Index to Rules. Y29 [See index to the notes, post, page 735.] REAL PROPERTY— (Continued): page. Foreclosure of mortgage on. See Mortgage roEECLOsuEB. Sale of, under decree, order or judgment of any court. See Sale. RECEIVER — Of a debtor's estate — powers and duties of 432 To be allowed costs 432 When he may sell doubtful claims at auction 432 Appointed in proceedings supplementary to execution — when he may sue — security for costs 449 Power of, to employ counsel 451 RECITAL — In order of all papers used or read on a motion 42 In an order of arrest, injunction or attachment to state the grounds thereof 94 In orders granted on petitions 165 RECORD — Courts of. See Courts of Record. RECORDING — Of mortgage and assignments before conveyance in mort- gage foreclosure actions — expense allowed in costs 395 REDUNDANT MATTER. See Irrelevant Matter. REFERENCE — Contents of referee's report as to the sale of real estate of infants, lunatics, etc. — proof of value 352 In mortgage foreclosure cases referee to be selected by the court .... 374 On application for surplus moneys referee to be selected by the court. 396 Who may be appointed a, sole referee 450 Not the partner, clerk or one connected in business with the attor- ney or counsel in the case 450 On application for judgment by default — ^ where executed 163 Stibmitting to nonsuit before a referee 173 Testimony to be signed 173 Reference of issues 173 When the report becomes absolute 173 Exceptions thereto to be filed within eight days 173 Application for a new trial, where specific questions of fact have been tried by a referee 184 On failure to answer on mortgage foreclosure — what proof must be made 357 As to title in actions for partition 407 The referee is to be selected by the court 407 On default in an action to obtain a, separation or divorce 417 Who may be referee 417 RENTS AND PROFITS — Of real estate belonging to a, debtor — re- ceiver of the debtor may enforce payment of 432 REPORT — Must be folioed and fairly and legibly written or printed — waiver of the objection 142 Of referee. See Reference. RESETTLEMENT — Of a case or exceptions which does not conform to Rule 34 257 RETURN — Of sheriff, how compeaea 60 730 Index to Rules. [See index to the notes, post, page 735.] PAGE. RULES — Of the several departments as to filing papers relative to the admission of attorneys 31 Appellate Division of each department shall adopt rules regulating the hearing of causes and the calendar practice 292 As to the exchange of briefs, etc 303 Assigning days for the hearing of non-enumerated motions and appeals from orders 305 Regulating the hearing of counsel 317 The various courts of record are authorized to make further rules .... 460 Practice in cases not covered by the General Rules of Practice 461 For computing the value of a, life estate or annuity 464, 465 Regulating appeals from City Ctourt of New York and Municipal Courts 407 Regulating trial terms in first judicial district 472 Regulating special terms in first judicial district 480 Regulating procedure upon application for naturalization in first judicial district 493 Regulating attendance, etc., of clerks, etc., in first district 494 Of the Appellate Division, first department 501 Of cases arising under the Election Law 506 Second department 507 Calendar practice in 510 Regulating admission of attorneys in 514 Regulating naturalization in 514 Appeals from M^micipal Court in 514 Relating to form of bond of applicants for license to prac- tice as official examiners of title 515 Third department 517 Fovurth department 521 Calendar rules in 522 Of the Court of Claims 483 Of the New York Surrogate's Court 528 Of the Kings County Supreme Court — calendar niles of Trial Term. 538 Equity calendar 540 Of the Surrogate's Court of Kings county 543 Of the City Coiu-t of New York 547 Of the Court of Special Sessions of the City of New York 555 Of the State Board of Law E.Kamiuers 610 Of the Municipal Court of the City of New York 558 Regulating duties of clerks, etc., in 566 Of the Court of General Sessions of the City of New York 569 Of the Magistrates' Courts, city of New York, First Division 576 Of the Magistrates' Courts, city of New York, Second Division 586 Of the Board of City Magistrates, city of New York, First Division. 582 Of the Board of City Magistrates, city of New York, Second Division 589 Index to Rules. 731 [See index to the notes, post, page 735.] PAGE. SALE — -Of real estate of infants, lunatics, etc., petition for, what to state — previous application 347 Contents of referee's report — proof of value 352 Security required of special guardian 353 Proceeds thereof must be brought into court — costs 355 Moneys arising from — -when to be paid to general guardian — security required — • contents of petition therefor 356 Of mortgaged premises under judgment — form of the judgment... 374 Surplus moneys arising on, to whom to be paid 374 Voucher therefor to be produced on confirmation of report of sale 374 Under judgment or order in the counties of New York and Kings and in the city of Buffalo 376 Between what hours to take place 376 Notice to be given 376 Place of sale in the county of New York 376 The place of sale may be changed by the Appellate Division in the first department 376 Place of sale in the city of Buffalo 376 Place of sale may be otherwise ordered by the court 376 Place of sale in the city of Buffalo subject to such regulations as the justices of the Supreme Court of the eighth district shall establish 376 Stay of sale, in actions of partition or foreclosure — notice required . 408 Of desperate debts and doubtful claims to personal property by the receiver of a debtor's estate 432 SCANDALOUS MATTER. See Irrelevant Matter. SEABCH — For conveyances or incumbrances on applications for surplus moneys 396 SECOND DEPARTMENT — Rules of the Appellate Division of 507 SECURITY — To be given by the general guardian of an infant 346 To be given by a general guardian before receiving the proceeds of sale of property belonging to an infant 341 To be given by u, guardian ad litem before receiving money or prop- erty belonging to an infant 341 Required of a special guardian on the sale of the real estate of an infant 353 For the payment of costs, in an action brought by a receiver in sup- plementary proceedings 421 SEPARATION — A judgment by default or by consent not allowable 267 Reference on default in an action to obtain — who may be referee.. 417 Proof of service of summons and complaint 417 Notice of appearance, etc., not sufficient 417 Complaint for separation — averments in 417 Plaintiff to be examined on oath 417 Failure of defendant to answer 417 732 Index to Rules. [See index to the notes, post, page 735.] PAGE. SEQUESTRATION — Of property — motion for the appointment of a receiver — A\here made 450 Effect of, on subsequent suits 450 Removal of the receiver 458 SERVICE — Of a summons by a person other than the sheriff 123 Proof of, what to state 123 SETTLEMENT — Of a case and exceptions where a new trial is applied for after specific questions of fact have been tried by a jury or referee 184 Motions therefor, to be made at Special Term 184 Of case and exceptions and amendments thereto 193 Of a case — effect of a failure to serve notice thereof 255 Extensions of time to serve case or amendments, to be on notice .... 193 Of interrogatories and cross-interrogatories to be annexed to a com- mission 144 Of feigned issues, where the trial of issues of fact is not provided for by the Code 184 Of a statement of voluminous documents used on non- enumerated motions to be on notice 258 SHERIFF — Return by sheriff, how compelled 60 SPECIAL GUARDIAN. See Guaediaw ad Otem. SPECIAL RULES — Of Appellate Division. See Riiles. See also Index to Local Rules at end. SPECIAL VERDICT — An enumerated motion 289 STATE BOARD — Of law examiners — rules of 610 STATE LAW LIBRARY — Copy of the case and points at the Appellate Division to be transmitted to 304 STATEMENT — Of the contents of voluminous documents used upon nou-enumerated motions 258 Of facts in points. See Points. STAY — Of proceedings — an order for discovery operates as 120 An order staying proceedings, except in the first judicial district, served after the action has been noticed for trial, and within ten days of the Trial Term — when it is not to operate as a stay 267 Order to stay proceedings with a view to change of venue 318 Of sale in partition or foreclosure — notice of application therefor required 407 STIPULATIONS — Between parties or attorneys to be in writing 91 Substituting a, statement for voluminous documents read upon non- enumerated motions 258 SUBPCENA — Application for, to compel a witness to testify within, for use without, the State 121 The application therefor must specify the particular book to be pro- duced 121 When it must be served upon the witness 121 Who may apply for a modification of the subpoena 121 Index to Eules. 733 [See index to the notes, post, page 735.] PAGE. SUBSTITUTION — Of attorneys — how made 79 SUMMING UP — Time allowed 168 SUMMONS — Service of. See Pbocess. SUPPLEMENTARY PROCEEDINGS — Ea; parte appUcation for, to state any previous application 161 See Eecetveb. SUPREME COURT — Papers in, to be filed with the county clerk 45 SUPREME COURT PRACTICE — Applicable to cases not covered by the General Rules of Practice 461 SURETIES — Justification of — attorneys or counselors cannot be 56 On the bond of a special guardian in proceedings for the sale of real estate of infants, etc 353 See Secukitt. SURPLUS MONEY — In mortgage foreclosure cases, to whom to be paid — voucher therefor 374 Application for — notice thereof — reference — searches — unsatisfied liens 396 Referee to be selected by the court 396 SURROGATE — May allow further time for service of a, case and amend- ments and settlement thereof 194 Papers in, to be filed in the surrogate's office 45 First department — rules of the Surrogate's Court in 528 TENANT — By the curtesy — payment to, of gross sum in lieu of life estate — amount, how ascertained 413 For life — payment to, of gross sum — amount, how ascertained.... 413 TESTIMONY — How taken on a trial 168 When testimony before a referee is to be signed 173 See Evidence. THIRD DEPARTMENT — Rules of the Appellate Division 517 TIME — A motion to strike out irrelevant matter, or to make a pleading definite, must be noticed before answering and within twenty days — extended only on notice 148 Affidavit for order extending — former extensions to be stated 159 Notice of application therefor 159 Allowed on the summing up of counsel 153 For service of a case and amendments thereto 193 Extensions of time to be on notice 193 Of notice of a motion at a Special or Trial Term 267 Of notice of argument at a Special or Trial Term 267 TITLE — To property — order or judgment affecting, may be enrolled or docketed 166 Reference as to, in actions for partition 407 The referee is to be selected by the court 407 TRIAL — Examination of witnesses and summing up — time allowed — taking of testimony 168 Submitting to nonsuit before a referee 173 734 Index to Eui.es. [See index to the notes, post, page 735.] TRIAL— (Continued): page. Keferences, other than of issues 173 Testimony to be signed 173 Referee's report 173 When the report becomes absolute 173 Exceptions to the report to be filed within eight days 173 By jury — settlement of feigned issues 184 A case where an attachment has issued or the defendant is under arrest is preferred 262 Calendar practice of Trial Term or Special Term for the trial of equity cases 262 Issue of fact — neglect to bring to trial 262 Of cases upon the calendar of the Trial Term or Sj)ecial Term for the trial of equity cases 262 Of an action to obtain a divorce or separation — plaintiff to be exam- ined on oath 417 Of an action for divorce 430 TRIAL TERM — When contested motions will not be heard at 289 TRUST COMPANIES — Depositories of money paid into court 411 Account with 411 Statement thereof to be made annually 411 Draft — what to be stated in — to be countersigned by justice 411 TYPEWRITTEN COPIES — To be written or printed in black characters — otherwise not to be filed or entered by the clerk 142 UNDERTAKING — To be forthwith filed in the proper clerk's office 53 To be proved or acknowledged 56 Attorney or counsel cannot be sureties 56 Filed in the office of the clerk of the Appellate Division to be recorded at large 64 Bond to be given by the general guardian of an infant 346 Bond required of the special guardian on the sale of real estate of an infant 353 VENUE — Change of — -where all subsequent papers are to be filed.... 45 Order to stay proceedings witli a view to change of venue 318 Affidavits on motion to change venue 318 WAIVER — If the failure to folio a pleading is not objected to within twenty-four hours 1*3 WITNESS — Examination of — time allowed 168 Examination of a party before trial — moving affidavits, what to state 452 WRIT — Petition or affidavit on which it is granted to be filed within ten days 54 Of inquiry on application for judgment by default — where executed. 163 Of arrest. See Arbest. WRITING — Agreements between parties or attorneys to be by order or in writing ®1 INDEX TO THE NOTES. [See index to the rules, ante, page 709.] PAGE. ACTION — Discontinuance of -. 175 Dismissal for failure to prosecute 263 Appearance in. , See Appearance. Venue of. See Ventje. ADJOURNMENT — Of judicial sale. .386 ADMISSION — Of attorneys^ rules governing 7 ADULTERY. See Husband and Wite. i • ADVERSE POSSESSION — Basis of title' to property sold at a judicial sale '.'. , 395 AFFIDAVIT OF MERITS — Proper fornv 158 As to counsel 'i 158 , " On the'merits " - 158 Advice of counsel must be sworn to 158 Belief in advice' 1'58 :" Fully and fairly stated his case " or " this case " 158 "The facts of his case". 158 "A good and suhstantial defense to the bond," insufficient 158 " His case in this cause," insufficient 158 Defense " to said- action for conversion," insufficient 158 " A good and valid defense to the whole of the plaintiff's claim ■ as set forth in said complaint, upon the merits thereof " . . , . 158 " A defense in the action " 158 " His defense " 158 " The facts of his defense " _. 159 "Has a defense" -, * ..!...... 159 Pacts come to his knowledge 159 t Affidavit of .attorney 159 Affidavit of agent 159 Reason to be stated ^ 159 Absence from the State 159 Affidavit by maker — how far available to the indorser 159 Default — not opened without affidavit 159 ALIMONY. See Husband and Wife. . [735] 736 Ij^dex to Xotes., [See index to tlie rules, ante, page 709.] PAGE. ALLOWANCE — Motion — to what court made 306 Submission of controversy ^ . . . •. . '. 306 ., Motion — in what county made ,.;... .^ . , 306 Made at Rochester in an action tried in New York — set aside. . 306 In the first district 366 Application should be to the same court or judge trying the case. 3'Ofi When rule' not applicable ". 306 Waiver of objection that application was made to wrong jiidge . 307 M.. .' . . 313 Where the subject-imatter is a two years' lease. .> 313 A demurrer is a defense -...'.. ..^ 314 (Jeneral provision® — plaintiff not entitled to an extra allowance where he is not the successful party 31-1 - , Allowed only where .general -costs are recovered 314 \',, Indemnity" — allowance is granted as - 314 '38 Index to Notes. [See index to the rules, ante, page 709.] lLLOWANCE— (Continued) : ' General provisions — (Continued) : ' ' , page! A contingent interest of the attorney in the recovery militates ' against it . . . . r r 314 Premature application 314 Second; motion, when irregular . . ; .- 314 Discretionary .' 314 Interference by appellate court 31-4 Only in the event of an abuse of discretion 315 Extra allowance, forms part of .v... 315 In murder trial , '. . 315. Power of court to grant , \ 315 Eeferee — wligre the action has been tried before a referee, the appli- cation must be made to a Special Term 316 Referee's certificate — not sufficient -unless facts be ehown to court .^ ". 316 Additional allowance granted oil the certificate of a referee 316 Appeal — to Court of Appealai. ■■_■... 316 Does not lie froni an order of the General Term, reversing an . allowance by a purrogate 316 i The order is appealable to the General Term 316 Discretioii of the trial ooiirt not disturbed - 316 When Appellate Division cannot pass iipon motion for. ■ . ■ .- , 316 MENDMENT — Of rules — construction of .' ' 10 Of clerk's minutes .'" .* 69 Of' oas.e on appeal '. 226 Of oindertaking. See Undertaking, PPEAL — 'Who may not sit in review ; ^ 9 'From an order grtating a discovery. ~. 119 Judgment, for appellant without new trial : 252 Evidence on appeal — when the court will, on appeal, receive a docu-' ment imperfectly described in the case '. 252 Documentary evidence on appeal — when allowed 252 Production of record of certificate of tax sale on appeal. . . ... . 253 Receiving a decree'on appeal to sustain a judgment !••■■ 253 A record may be produced for the first time before an appellate - court ■ • ■ 253 Admissions not received in evidence upon the trial. 253 Court of Appeals confined to findings of fact by referee 253 No appeal to, on m.6re question of costs 253 ^ Appellate Division ^- review of facta by , ; . . 254 Review of order of 254 Court of Appeals concluded by unanimous decision, of Appellate Division, etc ■ ■'. 234 . Statement on appeal — to Court of Appeals ; 253 ^,- iSTDEX TO i^OTES. ( 0'» ■tX7 . ■ - ^ [See index to the rules, ante, page 709.] ^APPEAL— (Continued): . page. General Term — review of facts by . ' 254 County Court — judgment on the report of a referee ,254 ' Notice of argument -^ proper after settlement of a case. '...'. 285' Eeargument — ordered When the highest court has decided otherwise. 285 If important point overlooked toy the court. . . ., 286 Overlooked by counsel ' 286 . ' ^Motion for, not stating the facts overlooked 286 Eeargpanent denied, where the question can be settled oh a new trial i 286 Heard upon the s;a,me case 286 Denied, in case of leave to go to Court of Appeals t. 286 Effect of a decision of the ^Court of -Appeals .' „.....•..,. 286 When application is too late ^ 286 Order denying reargument at General Term — not reviewable in Couft of Appeals '. 286 \yhen a reargument granted , 286 That remedy exists by appeal — is ground for refusing a reargu- ment ■ 286 Motion, not appeal, the proper mode, to enforce stipulations... 286 Laches in filing note of issue 292 ■ Calendar on 293 Printing papers — dispensed" with only on order of the court 299 Eight of Special Term to dispfense with the printing of papers on an appeal 299 To be sparingly exercised 299 ■ Papers to be printed on an appeal from an order of the County Court granting a new trial 299 What papers are required at General Term .■ 300 Contents of record oh appeals from orders 300 The opinion below 300 Two independent cases cannot be incorporated into one appeal book : 300 Appeal boiok showing no decision of the issues of law. 300 Omitting opinion ^^argument postponed to allow it to be pre- sented '.... ■!, 300 '^' Argument on the Wtenograplier's minutes, denied 300 The expense of printing is a necessary disbursement..... 300 Cost of printing what papers, is a taxable disbursement. . ,V . •■.■ 300 Expense of preparing the' case in a criminal cause ..*.,.. . . 300 Error in printed case — when disregarded 300 Papers used on appeal different from those used below ^ — remedy. 301 Rule — how enforced ; 301 Case, when ordered off the files 301 ' Irregular case 301 ■*^ Irregularities must be corrected by motion ) . . . 301 40 "■*'■;'• ' Index to jSI'otes. r,^. [See index to the rules, ante, page 709.] • •^• PPEAL— (Continued): i' Printing papers — (Continued):-, ' page. Amendnjent of appeal papers not allowed after argument and'. decision on appeal 301 Court cannot shorten time for service of printed case 301 Appeal papers — must be certified ; 301 Certificates to an appeal book on appeal from an order 301 Uncertified case stricken from calendar *..''...<.. 301 Exceptions ordered to be heard at General Tto-m — plaintiff must Serve papers 301 Appeal dismissed — if proper papers are not submitted, 302 Absence of papers 302 When it does not appear whether the appeal is from a, judgment : or, an order , ,. 302 New York Common Pleas — failurd to print papers — remedy. 302 New York Common Pleas — length of notice' to dismi* appeal.. 302 ' , By City Court of New York for failure to prosecut<; :.-302 Dismissal of appeal , for failure to serve printed appeal papers ^- • a second appeal cannot be taken without leave 302 Judgment on appeal — form of -. : 302 Must conform , to remittitur 302 Points — what is covered by 302 Submission of brief after arguinent. ,_. ' . . 302 Erj-or , considered, though not argued -. 302 On appeal an order is presumed to have been correctly granted. . 303 ; Appellant's points sliould point ■ out defects / 303 Numerous exceptions — duty of counsel to point out in his points ' those upon which he relies ; , .; 303 From order on motion for additional allowance. ., 316 From order on rpotion to change venue 333 From order in surplus money proceedings .....'..... 403 From order granting examination before trial . , ■. . . . 460 See Case and £!xceptions. PPELLATE DIVISION — Formation of 9 "V^Tien order of, reviewable by. Court of Appeals ,.:..,, 208 Effect, of unanimous approval of finding of fslct by... ' ^ 208 ' When, cannot reverse on the facts .'T.* *. ■. . 208 PPEARAJNCE — Authority of attorney assumed 70 By an attorney, witlinnt authority, gives jurisdiction 70 No jurisdiction acquired by a notice' of appearance from an unau- ■ thorized attorney *. . 70 Unauthorized appearance in a .Justice's Court 70 Unauthorized appearance for a non-fesident : . . . . 70 ■\^oluntary — eflfeet of . . . ,' 70 Notice — not signed, etc., a nullity 71 Extension of time to appear 71 ' Bv executor •■ 71 Index to JNotes. . 741 [See index to tlie rules, ante, page 709.]' APPEARANCE— (Continued): '. < page. What constitutes an appearance — notice of appearance or a copy of an answer or demurrer, only ' . . . ?"..,..... 1 . . 71, \YhfU an answer verified by a defendant not a resident of the State does not 'constitute a general appearance ', 71 Motion, by a defendant not served "..'. 71 ^ Notice of motion 71 Notice of retainer 71 Notice of bail . . . '. 72 Notice to vacate attachment : 72 ■Appearance upon a motion 72 Opposing a motion for an injunction 72 Appearance on motion for alimony ., 72 Affidavit and notice of motion ^. . . 1 72 Order extending time ..... j 72 Procuring an extension of time to answer :'.'... 72 Stipulation signed "defendant's attorney "'....■ 72 , Ci'oss-examination by an unauthorized person. .' .-. 73 For defendant residing in other State ,. . . . , 73 Hovr determined — decision as to, not appealable 73 An appearance in a State court, by what rules, considered 73- By whom and when — a husband may direct an appearance to be entered for his wife 73 Effect of an appearance by partners, where only one has been served '. 73 When the counsel may be regarded as the attorney 73 When a pai'ty may appear. . , '. 73 In person — not allowed when an attorney appears. . . .' 7.3 An attorney precluded from acting after he, has given a consent for substitution 73 In Justice's Court ; . 74 Effect of — a, waiver of want of jurisdiction over the person. ....... 74 Jurisdiction over the person admitted by an appearance and answer , 74 Objection to jurisdiction waived by appearance and demurrer.... 74 Waives defects in service ;....... .-.-. 74 Voluntary appearance By the United States . . 74 Appearance where an attachment is issued. . . > 74 < Appearance of non-resident by attorney confers jurisdiction .... 74 ', An appearance for , a corporation sustained, though it was im- properly served 74 Precludes raising the question whether the action might be brought under Code Civil Procedure, § 1780 ; 75 \ Appearance by an alien and non-resident.- J. ... 75 A general appearance by one sued in a local court — does not , admit its jurisdiction over the subject-matter 75 742 Index to Notes. [See index to the rules, ante, page 709.] APPEARANCE — Continued) : Effect of — (Continued): _ • page. Waiver of objection to the jurisdiction of the court. 75 Waiver of objection to the jurisdiction over thte person wliere the appearance is a qualified one 75 By one not served — -a defendant not served cannot appear 75 Cannot move to dismiss the complaint, ,. 75 A defendant "against vp^hom judgment is asked for' has a right to appear although not served 75 A partner not served may appear •. 76 Motion by a partner not served to set aside a judgment regularly entered against the firm 76 Objection '■ — to the right to appear, when it, should be -taken 76 Pi'oof of authority — required of an attorney in an action to recover real estate . .. : 70 It is discretionary with the court to require an attorney to show his authority / .'!'■'..■ 70 Extent of inqiiiry as to authority '. 76 Ejectment — ■ proof of authority must be filed r r . . 70 Relie"f from unauthorized appearance — when a judgment •will not be i .set aside because an appearance was unauthorized 76 Unauthorized appearance for one, not a partner in a firm repre-' sented 77 Laches 77 iVot set aside where the attorney has dded and there is laches. 77 When an unauthorized appearance works no injury, it will not ' be stricken out '. .-. 77 No remedy in a collateral proceeding '. '. . . 77 An unauthorized appearance /for non-resident 77 By person forbidden to practice 77 May be disputed by judgment-debtor. ...;;. 77 , Place of residence — how determined "... ......".,! 77 Service by mail .' 78 ■ / , Relates to the , post < office ....'...: ■ 7S Foreign judgment — recital of appearance in the record of 78 Withdrawal of appearance — on payment of costs. , ■ 78 Special appearance — demand of notice of execution of any reference, or writ of inquiry — to what it entitles deffendant .......... . 78 An 'objection specially to jurisdicition is good ground for exl^end- ing time to appear generally and to plead 78 Prohibition to act, not avoided by , 78 By non-resident 78 Removal to U. S. court — : time of removal — not restricted to that of entering appearance 78 Appearance in Surrogate's Court 79 Appearance in foreclosure 361 Index to Notes. ' . ,- 74:3' " ■ ' ■ , . ' ' f^, [See index to the rules, orate, page 709.] A , :' , ' PAGE. ARBITRATOR— 'Papers on appeal from the decision of arbitrators, 221 ARGUMENT — ]S[otice of 285 ARREST — 'Use in the alternative of equivalent terms in defining an : offense is not a ground for vacating an order of arrest. ,95 ATTACHMENT — Xot vacated because of failure to file the affidavit.. 47 Affidavits on — filed under section 639 of the Code 47 Failure to correctly state the grounds of attachment in the warrant — how amended ; . . 95 What is a sufficient statement of the "grounds of the attache ment " 95 Sufficiency of warrant '. 95 AmeHdment of warrant 95 Upheld though summons had not been served 141 Not sustained because of non-service of summons on defendant, who has died 142 ATTORNEYS AND COUNSELORS — Rules for the admission of....... 34 Construction of rules, for adniission of attorneys 34 Race or sex does not debar 35 Citizenship of applicants for admission 35 Offices of attorney and counselor are distinct ; 35 Office of public trust within the Constitution, 35 Not a Stale officer 35 An attorney is a public officer within the Non-imprisonment Act. 35 ; illequirements as to . publication of rules as to admission of attorneys,- directory ...,.\:. ,. . . . . 35 Filing eertifi^cate nuno pro tunc •.' 35 Study — course of 35 Admission ^ power of Supreme Court over — exclusive ' 35 The court acts judicially '. 35 ' Application for — is a special proceeding — an order denying it is appealable .-'■.■ - 35 Proceedings in Supreme Court, after decision "in the Court of ' Appes^ls . . .' • 36 Good character of applicant — decision of Appellate Division con- clusive 36 '■■/ - Admission to practice denied to attorney from Italy 36 "1 Registration of attorneys — Practicing attorneys are required to register ^ . , 36 Filing oath nunc pro tunc 36 Oath — of office ,.:^ 36 Of allegiance *. "6 .Disbarment — general power of the court 36 . ' ■ Power of Appellate Division to disbar attorney — disbarment in > addition to criminal prosecution 36 '''44 , Index to Notes. [See index to the rules, ante, page 709.] ATTORNEYS AND COUNSELOBS — (Continued) : Disbarment — (Continued) : pace. Duty of the court .'..,. , 36 Not used to settle quarrels ,.. .K 37 Misappropriation- of client's money ., 37 Power of court ; 37 Power of reviewing court 37 Punishment and remedy — by summary proceedings — not by aotioij ' , 37 Admission to or remotal from practice by Appellate Division. 37 Under control of court 38 Proceedings proper for : 38 Court to institute proceedings — proper practice 38 The court may act summarily : 39 Commission to take testimony, — irregular 39 Waiver of irregularity , . /. 39 Unwarranted proceeding to disbar is not a contempt of Court. 39 Court will awaitVresult of criminal trial 39 What justifies^ disbarment — a felony forfeits the officp 39 , What crime does not forfeit his ofBce 39 A crime, notwithstanding its pardon, may be considered 39 Bad moral eharactet .' 39 Changing the verification of a ^pleading :) 39 Use of an undertaking on a second application 39 Fraudulently imposing upon the court 40 Deceit or malpractice ' 40 Deceit, defined. 40 '• Malpractice, defined '...'...... : | .:.... . 40 Deceit, practiced in his character as such, though not in a, suit . . 40 Failure to pay over money. ^ 40 Deceiving client '. / . . . 40 Using funds bel<3nging to estate . , 40 Pur,chasing fraudulent certificate 40 ' I'ayment of money for adjournments of court 40 Concealment of fact of conviction 41 Frauds upon clients ....." 41 Taking testimony vipon written interrogatories 41 Regularity of criminal prosecution will not be inquired into 41 Aidiiig the manufacture of evidence tending to deceive 41 What is not punished by disbarment — • instituting without cause pro- ceedings to disbar another attorney ". 42 Writing to judge who tried case .' ' -.. 42 Inserting scandalous matter in pleading... 42 Action by, as a party . . . , 42 Taking vexatious proceedings for delay 42 Imprisonment for the non-payment of a fine. 42 IxDEx TQ Notes. , 743 [^ee index to the riilea, ante, page 709.] ^ ATTORNEYS AND COUNSELORS — (Continued) : / I ■ What is not punished by disbarment— (Continued): / page. Return of records by, how enforced 42 Actions and conduct held censurable 42 Eeadnjtission, to practice — application f or ^ 43 Review of disbarment — order suspending an attorney — how far reviewable by the Court of Appeals ,' 43 Decision by General Term, — not reviewable in Court of Appeals. 4.'! Who cannot practice —^ judges not allowed to practice 43 New 'York, city — none but attorneys to practice iji . . 43 ^ A judge — the partner of a judge and a judge's clerk — can- not practice in liis court : ... 43 Partner of district attoriiey, or otlier public prosecutor, not to » defend r 43 Public prosecutor — when unable to act — punishment 44 - - Surrogate not to practice 44 ; Surrogate's clerk, o^ other person employed in surrogate's office, not to practice before the surrogate . . . 44 A surrogate's father or son not to practice before hinv .' 44 ■Constable, laW partner or clerk of justice cannot practice before '■"■".'.! the justice ., ■. ,. . .-, , 44 . , Sheriff, etc 44 Clerk, etc ._....: '. . . . 44 ; Oonstitutional right — citizen of another State.... '....; 44* Right to piractice, not, protected by United States Constitution. 44 Non-residents — cannot practice 44 Non-residents — may practice in this State, when 44 An alien cannot be admitted .■■.■*., .' 44 Punishment . . ., '', ....... ^ .... :, 44 ^ Action against attgmey by client for unauthorized settlement. 4.5 Effect of appearing by one forbidden to practice 45 Corporations may not -practice law 45 United States courts — attorneys iind counselors of 45 • As bail and as sureties on undertakings 59 Substitution of attorneys — nature of application 79 Jurisdiction of the Supreme Court over, on motion or in special pro.ceeding . . * ; 79 When allowed . . '. '. 79 Allowed where the only service rendered hy the original attorney , was to appear .....,...' , j . 79 . Payment of costs , 79 What the order of substitution should direct; — reference to iix compensation . . . > 79 Where an attorney has been guilty of misconduct .:.'.. 80 Iniproper and neglectful conduct : . . 80 Omitting necessary ' parties ■ , 80 746 : ' : Index to Notes. '■%\ '_. [See index to the rules, ante, page 709.] ATTORNEYS AND COUNSELORS— (Continued): Substitution of attorneys — (Continued): ' .^V page. When substitution will not be allowed 80 Right of a client to change his attorney is absolute — lien for fees r- 80 Consent of attorney alone, not enough 80 Consent of court to ; '.,... 80 An order of- substitution is essential 80 • When it takes effect ! ...■.....'. ' 80 ; Service of .notice without order, sufficient : . 80 Where one attorney is retained, a second can act only after being duly substituted - 81 ♦ Attorney retiring from a suit — ^'when he ' loses his claim for compensation . ." 81 Attorney's withdrawal, not justified by a failure to pay his fees. 81 • I ^ ,, Wrongful substitution of attorney : ,....,... 81 • . ' , When an appeal is pending in the Co^irt of Appeals — applica- tion should be made to tbe court below. 81 A lojng . delay justifies it. . ; ■ 81 Opposite attorney required to permit inspection of the plead- - ings by a substi-tjited attorney -. 81 Conclusiveness of a determination of' the Appellate Division re- , ' quiring substitution . ' ;...._....<....■...'..:.:.. 81 Attorney's rights to be protected. .■' ....*..'....■ 82 .'Court will not "stipulate that .bond be given 82 Termination of authority — wheii an attorney's authority ceases... 82 'He is precluded from acting, after be has givto-'a consent for ' substitution . . ,\ v i 82 Rule staying proceedings for .thirty, days after notice in case of death «r removal ' — not applicable after entry of judgment . . 82 It ceases with . the entry of judgment .'.....'.... 82 After entry of judgment, a new attorney without substitution may sign notice of appeal .' '. 83 'SuJbstitution for the purposes of an ap'peal without an order. . 83 Appeal cannot be taken by a new attorney unless substituted. ......" 83 Notice of appeal'pot signed by the 'attorney of record — objec- tion, how to be taken ' '.......'. ■ . 83 Notice must come from the prevailing party. 83 When relation exists S3 I Acceptance of service of notice of appeal, compelled 83 ^ Satisfaction of a judgment by the original attorney, for whom / another has been substituted, is invalid 83 ■ Liability of attorney after relation ceases 83 When party entitled to order without payment of additional fees. ... 84 Rule applies to Sijrrogatefs Court '■ 84 Delegation of authority ., , : 84 Index to I^otes. , . , 747 [See index to the rules, ante, page 709.] 'ATTORNEYS AND COUNSELORS -*- (Continued) : page. , Lien of an attorney — extent of it. ..,...'... .,. .'. .,•; 84 What it does not embrace. ..... , 7 : .,...."., 84 Creneral" indebtedness , 84 Lien where a judgment is for costs only. .■.■.;...■ '84 .Continuing an action by an attorney for the costs ...,..: 84 Where compensation is 'to be paid from proceeds of judgment. . 84 To what it attaches . . . . ' ^. . .■: 84 It attaches to the judgment recovered .:....-.!. ., 84 . To what papers the lien'attaches ........;... 84 Upon ' what- property ' . : ; , '. \ . . 84 On property in a receiver's hands.,. ■. , . . .' 85 Attorney's lien superior to a judgment creditor's 85 Satisfactipn • set aside. "i^ '. 85 The judgment .cannot be impeached ior.lack of authority 85 Measured by taxable costs •. 85 ^Taxable costs the extent of the recovery ,. 85 Entitted to taxable costs '^ of right -^ disbursements 85 Extends to all provisional remedies ..........' .'...... 85 Not limited to services in the particular. ' action 85 No -lien for general services on proceeds of a judgment paid to the receiver of his client . . ; 85 A lien dfoes not apply to a special proceeding 86 Does not embrace alitoony. . . . ; 86 Restricted in case of Substitution ...' 86 The attorney of record .alon,e has a lien :....'. 86 Counsel has not a lien ............ J 86 An, attorney cannot claim, an assignee of a cause of action for personal injiu-y .................. 1 86 Lien not . assignable _....'.'. ;■: 86 Enforced against his. client's assignee , 86 AsSigraniient of judgment — lien no answer to sununary proceed^ ■ ings .'. '...-..•". ; 86 Lien authorizes 'entry of judgment after the -client's death 87 Procvf of the extent of the attorney's lien. 87 How determined 87 Attorney may follow proceeds int9 hands of third parties,. 87 When the lien cannot be defeated Vy a setoif ibetween the parties to the action. .^ 87 Does not prevent the settlement of 'the »afion by the parties. . . .• 87 A settlement with a destitute client, Set aside 88 Entiy, of judgment after settlement. 88 The; lien does not prevent a settlement V 88 It is superior to a right' to ;get off a judgment. . '. 88 748 , liSTDEX TO I^OTES.^ [See index to the rules, an ie, page 709.] ATTORNEYS AND COUNSELORS— (Continued) : Lien of ari attorney — (Continued): page. The settlement of an action is ineffectual to defeat an attorney's li«n .......: .■........:... 88 Defendant may settle aetion, despite attorney's lien f 88 Protection against compromise — what constitutes a good cause of action .....;.. gg Satisfaction €f a judgment without notice to the attorney, where the creditor is insolvent : 88 Control of attorney by court. .' .;.>-, . 88 Excessive charges — retaining money for 89 Lien restored when an attorney is compelled! to repay an allow- ance 89 Lieu not affected by a conveyance to himself -. 89 Continues though the ela-im is barred by Statute of Limitations,',, 89 Municipal Court of Buffalo — no lien in 89 Where there is no counterclaim in the answer, the lien of the ' defendant's attorney cannot attjieh 89 • Notice by attorney of his interest in the recovery — necessary.. 89 Notice to the defendant's attorney is not notice to the defendant. 89 ^ Notice is not necessary. 90 When the atto'rney is r^arded as an equitable assignee of a judg- ' ', ment 90 Effect of s^tlement' by client -. . . 90 When lien may be established'. 90 Enforcement of lien — an application therefor is aspecial proceeding. 90 Collusive satisfaction of judgment, when set aside...., ' 90 Settlement of an action in fraud of attorney's rights, how vacated 90 How the lien may be enforced 90 Compensation and lien of attorney 90 Docket of order for his fees is improper s 166 Eeferehce to report on an attorney's Hen - 183 Employment of, hj receivers 451 BAIL. See Undektaking. BONDS. See Undertaking. BOOKS — Production of ^ — on examination before trial 457 Inspection of. See Discovery. BRIEF — Points on appea,l -. 302 BUSINESS HOURS — Of county 'clerks 66 Of sheriffs 66 Of registers of deeds. . , ' 66 CASE AND EXCEPTIONS — As to exceptions, see 5Jeiai,. Requisites of a case 199 Practice as to making .'. 199 " ' , Ikdex to JSToTES.' i 74(9 ' [See index to the rurles, ante, page 709.] ■', ' CASE AND EXCEPTIONS— (Continued): . 'i ' page. Contents of ._ . ' ; '; _ ; 199 Tlie opinion of .the court below forans no part of the record. . . . 199 Nor a copy of an account, served'in pursuance of a demand there- for, but not put in evidence '. 199 Narrative form :'. '. 20O Preparation of case necessary Only' through rules of practice .... 200 Failure to serve case 20O Appeal by both parties — separate records 200 Two independent cases cannot be incorporated in one appeal book. 200 A case essential to review » / 200 But not in all cases '. 200 Where a formal case and exceptions is, unnecessary 200 What must be presented by a 'case in tne event of a sealed' ver- , diet ..'..' ' 201 Exception on trial : 201 Case to contain all that occurred on the> trial ';i 201 Cise should contain statement that it contains all the evidence. 201' It should;, contain all the colloquy betweeil the court and counsel. 201 Order of stating evidence on appeal 201 Case ^to state real facts " 201 A paper, not read s.hould not be in, the case 201 Intelligent index !';■:.'. 201 An order striking out findings of court -^ ■when properly inserted. 202 The error ilaimed m.ust appear in tl^e record ■ ■ • . 202 Failure to print exhibits as directed by the court, is irregular. . 202 Necessity of: incorporating rejected do'cuments , 202 Omitting letters submitted to the jury 202 Absence from case of papers covered by the certificate ; . . . 202 Omitting Cumulative evidence , 202-^ Case presenting only questions of law -. — insertion of all the evi- dence in, not proper 202 Case upon specific exceptions or questions only 20.3 Appeal upon the judgment roll alone 203 To review legal questions a case need not contain all the evi- dence ....'.......> , 203 . A bill of exceptions should contain a, concise sta1;ement of facts. 203 Exceptions and introductory statement roll ...215 Objection that a ca,6e does not contain a proper eei'tifieate 215 Certificate on appeal from order of Surrogate's Court 215 Presumption — where the case does not allege that it contains all the evidence .' .' 215 . .Eesppndent 'presumed to have ha.d inserted all the testimony necessary to sustain the rulings : . •. '215 Presumption that facts were proved to sustain the fin,dings. ... 215 When absence of certificate fails to compel presumption that evidence sustained verdict 215 . ^Presumption that sufiicient evidence was given to support the . , -judgment 216 Presumption indulged by appellate court 216 By Court of Appeals, where, after three trials, no objection has I been taken, and there was no certificate 216 Not raised in order to sustain a judgment for the recovery of a statutory penalty ■, . , 216 Uncontradicted evidence .' . , 216 Presumption .of consent where evidence is received without objection .' 216 Case without' findings of fact 216 ■-Case without .certificate — presumption that General Term passed oil exc&ptioiis 216 When thfere is no presumption that facta were shown other than those stated in the referee's report 217 ■ .'/Where decision of the court is general, and states no findings. . . 217 754 ' Inbex to i!foTEs. ..i [See index to the rules, ante, page 709.] CASE AND EXCEPTIONS— {Ck)ntmued): Presumption— Continued) : ' page.. When- statement of facts in complaint assumed to' be true T 217 ' In favor of referee's report / 217 To what facts the presumption is confined 217 Time of making case * ' 217- Where the trial is before a jury 217 Computation of time ; 217 , Extensioii of time to serve exceptions does not extend the time , to appeal, or mce -versa ; 217 Application for an extension of time must be made in the court ', below 217 For relief from defajilt in serying a case should be made to the court below t '. 217 ' Default in filing a case t- what must be shown to open, do'fault . 218 Omissioi) to make. a case 218 -Notice of entry of judgment — what notice is insufficient.. 218 As to form of notice of entry of judgment. '. 218 Abandonment of ease — sfay until costs of prior action are paid. 218 Default in having case signed and filed within ten days works an abandonment — relief thereafter , ;.....,.... 218 Surrogate's Court — appeal from a decision admitting a, will tg -pro- _ bate, disapproved , , 218 Decision, how reviewed ; - 218 Clerical error 219 Questions of law reviewed only upon exceptions taken "under Cod^ Civil Procedure, §'2545. 219 landings by -S'urrogates' Oburts.^authorty to make. 2ip Case on appeal from — how made._. ..'...; 219 Appeal to General Term and' Court of Appeals 219 , Case upon an appeal from surrogate's decree must be settled-.... 219 Making of a case does not preclude' raising the question _oi jm--.' isdiction 219 Review of surrogate's decision without a case 219. Eight of a sm-rogate to extend the time for making a case 219 Findings of a surrogate on an accounting — how, far subject to. review in Court of Appeals ..... .i _, -. 220 Exceptions and a decision essential to the review of a surrogate's decree T. : . , 220 Exceptions essential — a general exception is insufficient 220 Exceptions to findings of a referee confirmed by the surrogate, raise what question .„. .« 220 Right of a respondent to set up defects iU portiolis of the decree ' not appealed fi-om ■ 220 What questions are presented on appeal from a surrogate's decree ,. .' . . 220 • '" , Index to Note's. 755 [See index to the rules, ante, page 709.] CASE AN.D EXCEPTIONS— (Continued): Surrogate's- Oourt — (Continued): ' pagk. What the court will not assume 220 Error must be shown to cause prejudice 221 Vacating decree for fraud, when jiistified 221 ,, Appeal from decree confirming a referee's report — on what heard 221 . ' -Appeal from order fixing appraiser's fees 221 '. Criminal c&se — expense of preparing the case. , . . . . 221 Arbitra'tors — appeal from the decision of arbitrators — upon what papers heard ' 221 Settlement — before *hat judge — presumption that it was correct. 221 ■ , St6nographei"s minutes to be' produced 222 ' Power of the trial judge to strike out evidence 222 Power of a justice to strike out exceptions from a case as filed. 222 Judge's - decision conclusive 222 Unless the denial of a- substantial right is apparent 222 When trial judge will not settle case 222 Case and g,mendments — • when legally settled 222 Omission of stenographer to note an exception — remedy 222 Omission in stenographer's minutes 222 Failure to settle a case 222 Failure to re-notice case for settlement, after .death of attorney , .; — dismissal of appeal refused 222 ' An appeal should n6t be dismissed for failure to -settle a case . . 223 Appeal not considered on a case not settled 223 Referee's certificate cannot be waived 223 / ' Mandamus to compel settlement ', 223 Remedy — • by motion 223 ; • Exceptions need not be signed oi- sealed by judge 223 A case in a criminal cause cannot be settled by stipulation ..'... 223 I Resettlement -^ motion, where to be made 223 Powet of court. to resettle case, not exercised to insert a memor- andum of trial judge 224 Where exceptions should be noted in the record on resettlemeilt . 224 Order to recite that it was made on a private stenographer's ' minutes . , 224 Argumerit suspended to allow motion for resettlement 224 City Court of iNew York — power of its Special Term to order resettlement 224 On motion for a new trial, the judge may amend the case 224 After decision of appeal, t^o late 224 After decision of General Term, and appeal to Court of Appeals. 224 Effect of not entering order made on motion for resettlement.. 224 Ap.peal from order denying a resettlement of a case 224 When an order denying a motion for it resettlement is ap- pealable ■ 225 'V56 Index to ]*<^otes. • " ■ t [See index to the rules, ante, page 709.] CASE AND EXCEPTIONS— (Continued): Resettlement — (Continued) : Page. Appeal from order denying resettlement ; 225 Rule on review of an order denying a resettlement 225 Naiirati ve form ■ 225 ' , To insert argument of counsel . 225 Resettlement in a particular way, not ordered. 225 Ordered Qp account of aJbsence of papers. : !* 225 Recollection of judge ,...._ 225 Correction — power of jtidge to- correct his charge ' 22C When appellant should be allowed to amend case as a matter of favor .'............ 226 A 'jud.ge may correct a case after it has been filed 226 , Respondent not to serve a new case by way of amendment. . . . 226 Where no facts were found by trial court 226i Omission of , referee's findings 226 Omission of referee's opinion — argument ^postponed 226 Defective case, when sent back for correction , . . , 226 ; Where an exception by defendant puts upon the plaintiff the responsibility of adding by amendment to the case. . 226 Errors, in the printed case disregarded — unless corrected on motion . , 227 Correction is' the proper' remedy where different papers are , . used on appeal '. , 22V Jurisdiction of the Supreme Court over a case in the Court ot .Appeals — pojver to make amendment to case 227 Appeal to Court of Appeals — power of Trial Term to amend • ■, ca^e . . '. 227 Case not corrected byCourt of Appeals 227 Not for the purpose of reversing a judgment 227 Amending record pending an appeal to the Greneral Term — Special Term cannot 227 At General Terr» — ■ not proper/. " 227 Case not corrected at General Term. 227 Amendment Ijy appellate court 228 Not to dbtain a reargumenf. 22S Amendments by Appellate Division v - • 228 When a ease shotdd be sent back for amendn^ent. .' 22S Of case after argument not allowed / '....;.. 228 Motion to amend is the prop'er r^etnedy when the return of the , court below does not include the judgment in extenso 228 Of case after final decision in Court of Appeals, not allowed.. . 228 , On motion for a new trial 228 After argument and decision ■: 228 When not allowed after decision of appeal at General Term . . 228 IlSTDEX TO ITOTES. ' ' ToY [See index to the rules, ante, page 709.] CASE AND EXCEPTIONS — (Continued) : ' '' ''Correction — (Continued): page. Statement of facts under Code of Procedure, § 333 —, where . . , . corrected . , , ._ ,. . . 228 Amendment to casfe, where the fact was in dispute. , ,.,. . 228 ' • , ' ,- Amendment will not be made to show statement of counsel .... 229 ,. / ,., Stenographer's, minutes — use of — disapproved 254 " " /, . , . -When they control' : .,:...'...... 254 How corrected . , " ,. '. , . • • ■ 254 Matter iiot appearing iu minutes ... A 254 C<)py of stenographer's minutes; when the amount paid for 1 them will not be allowed as a disbursement 254 When allowed as a disbursement 254 Stenographer's -minutes- in capital cases :.'... 255 ; Acts and gestures of witnesses — not presented by case. 255 View of iBremises by a referee ^.t : . , . 255 " Failure tok serve (iase — practice on O-'-, ■•• 256 Appeal cannot be dismissed for 256 ' Appeal not djismissed for failure to procure the settling and signing of a case 250 Case not necessary for a review in all cases ."..., 250 Failure to settle case or order it qn' file., •. } 250 Failure to serve a case is not a mistake or defect iti perfect- ing an appeal i :...... 250 ^Motion to dismiss — what to be shown' on - '. . . . 250 Default — when opened . 257 Application should be made to the court from which the ap- 'peal is taken 257 What must be shown to open default 23" Effect of a default in having a case signed and flled 257 Surety — liabili,ty of, where the appeal is dismissed 257 Time to make a case '. ■ ■ 257, Failure to serve as to one defendant 257 Bill of exceptions -^ contents of . . ; : 2oS ^ Settlement of — the court above cannot determine what oc- curred on' the trial ■ — mandamus .': 253 One exception on the same point, sufficient 250 Exceptions — to be clearly stated 259 An escaped prisoner cannot have a bill of exceptions settled. , . . 250 Settled, &t subsequent term — presumption. .' 259 ' ' When -questions, of law only presented — insertion of all ^ the ■^- evidence is improper 259 INot sufficient ^ where evidence consists of acts. .>.... .' 259 ,V . ', Separation of exceptions from the case 259 ' ' ' Form of a "case and exceptions intepd'ed to review rulings upon j ,, , testimony only '..... 259 758 Index to Notes. ' > [See index to the rulea,> ante, page 709.] CASE AND EXCEPtlONS— (Continued): Bill of exceptions — (Continued): page. Failure to reduce evidence to narrative form, precludes settle- ment by trial judge 259 . Buty of attorney 260 Original papers must be filed 260 Extension of time to file case 260 Does not exteiid time to appeal . . ." 260 Failure to file case — remedy of respondent 260 Remedy of appellant 260 Excuses necessary to prevent dismissal of appeal 261 Default n procuring, signing and filing of case -- relief 261 , Power to -compel the filing of a ease after its, abandonment 261 Evidence — a case is prima facie evidence of the facts stated in it ... . 261 Dismissal of appeal — failure to procure settlement and signing of ' ease. , 261 Failure to re-notice case for settlement, after ' substitlition of at- ^^ torneys. . 261 Printed pa,pers 299 Omission of index — case stricken from calendar 305 See Appeal. CERTIFICATE — Attached to case on appeal. ' See Case and Exceptiojs's. CHANCERY RULEi — Respecting investments of moneys paid into court. 411 CHAJTGE — Of venue. See Venuts. CITY COURT OF NEW YORK — Rules of 10 Justification of sureties on an attachment issued by . 59 CLERK — Destruction of records ^ 49 Duty of, respecting the entry of ' judgments 66 COMJIISSION — Of lunacy — costs of I.,. 416 Of receiver 448 CONDEMNATION PROCEEDINGS — EflFeet of — on mortgage 373 CONSTRUCTION — Of rules 10 Of amendments of rules 10 Given to statutes by rules 10 CONTEMPT — Action against receiver -. 442. CONTESTED MOTIONS 291 CONVENIENCE — Of witnesses. See Ventje. CONVENTION — Power of ". S CONVERSION -Inspection denied, to establish 118 CORPORATION — Discovery of books of • • 115 'Service of process on '. 134 Entry of judgment against a dissolved corporation 166 Kew York statutes do not apply- to a mortgage, exeouted'by a for- eign corporation 374 Receiver of 443 How far the 'title to real estate vests in the sequestrator 451 Index to Notes. , '^ 759 [See index to the rules, ante, page 109.] ' , ^ ' PAGIi. COSTS — Of motion /..',;.! 284 Of special guardian 355 In surplus moiiey .proceedings : 404 Of executing a, commission of lunacy. 416 Commissions of receiver 448 Additional allowance of. See ALL0WA^•c•E. COURT — Power of, to make rules 8 Power of, relative to discovery ; . . . . 97 Payment of money into court. See PaymenJ. COUJRT OF APPEALS — Rules of, as to admission ot attorneys 7 General Rules of Practice followed by D CRIME — Expense of preparing a case in a criminal court 221 DEED — Executed by special guardian of an infant 350 Form of referee's deed in foreclosure, 374 DEFAULT — Judgment on .\ 164 On motion 288 Judgment by — in matrimonial "actions '. 419 In serving ca,s© on appeal. See Case and Exceptions.. DEMURRER — Papers to be furjushed by party demurring.'. . . .". ....... 297 DEPOSITION — Application for the examination of a party — r what must be*" sjiown 452 Affidavit for the examination. . . . i : . . ..> 454 Examination not ordered when, the witnesses privileged to refuse to testify 454 Affidavit on information and belief 454 The affidavit should be made by the plaintiff 454 When it may be made by a third' person. 454 Existence of a cause of action 454 Materialit}'' to be shown ,. . 454 Order. not granted to enable a party tp ascertain testimony of'. opponent's witnesses and procure their evidence • 434 Testimony to be used upon the trial 454 Express statement that the deposition will be used on the trial is- unnecessary 455 What allegations in petition of Attorney-General are insufficient 455 "Order for exarnination served before the summons, bad. 455 Before issue ^ . . • 455 • Bill of discovery , . ; 455 Before suit brought 455 . . It must be a_ judge's order — ■ ex parte 455 ' Scope of the examination 4^5 Questions tending to criminate '■ . . -^ 455 Party .examined is bound to answer all questions which relate confessedly to the issues involved 456 760 ■ JJWfclnrDES TO KOTES [See index to the rules, ante, page 709.] DEPOSITION — (Continued) : . page. Not allowed simply to show false representations '. . . 456 Not allowed simply to show a party guilty of a xirime 456 Names ;. 7 456 Complaint, — preparation of 456 When not allowed to enable the plaintiff to frame his complaint. 456 Not granted- to enable a party to learn his opponent's evidence . . 456 Not allowed to discover a cause of action against persons not parties - 456 Not denied, because the party will be present at the trial 456 Examination before trial does not preclude an examination at the trial '. , 456 Duty of judge where the papers in form are correct : . . . 457 Practice on a motion to vacate 457 ( When granted i '. . . . . 457 Objection — must be by motion before trial 457 , Party — meaning of ' 457 Third person — examination of, to enable the complaint to be made more definite and certain. 457 Books and papers — production of, on an examination before trial . . 457 y An examination of the adverse party and a discovery of his books cannot both be had in one proeeedin'g. . .'! 451 . Discovery of books and papers is a proceeding independent of the right to their productioli on the trial, or by a party examined f before the trial 458 To annex document to commission to examine witness ■'..'..' 458 Exapiination of a machine imposed a's i, condition 458 Physical examination — examination of a plaintiff's person, not or- dered 458 inspection of plaintiff's person, in an action for malpractice — ' ordered 458 Physical examination of female plaintiff 458 A non-resident plaintiff is bound to obey an order for her physi- cal examination before trial , 459 Failure to serve- the order or pay witness fees 459 ,;,,!,, Examination to determine the physical condition of an applicant ''■„ for the position of policeman 459 Affidavit to procure order for physical examination. 459 Depositions of physicians taken thereon. 459 Effect of persistent refusal to submit to 459 Personal service of order necessary / 459 Bad faith alone sufficient to defeat right. .' " 459 when refused 460 Appeal — to the Appellate Division 460 Penalty — striking out pleading 460 Index to jSTotes. 761 [.See index^to the rviles, ante, page 709.] DEPOSITION— (Continued); page. Cbutempt ! J •. : . . . : . ' 460 (S'i Code of Procedure, § 388 and § 391 — relate to, different subjects 460 • Supreme Court is the successor of the former Com-t of Chancery 460 Notice ^- to attorney of the party to be examined, 460 DISBARMENT — Of attorney . .' 36 What justifies ' '39 I What is not punishable by <. .r ...'., i 42 " Readjttissioh to practice . . w,.l 43 Eeview of : 43 DISCOVERY — Code of avil Procedure, §§ 80^-808, is a virtual re-enact- ment' of the -Reivised Statutes. .. ^ .;.'.•.. 97 Power of court — to annex document to comriiission to examine wit- ness ... ./ ). 97 A discovery can only be had uiider section 803, etc., of the Code. 97 The examination of parties' or prMuction of their books cannot be conipelled under the provisions' of the Eevised Statutes as to perpetuating testimony ■ .• ■ ■ • 97 The rules dio not unite the remedies for discovery under the Code and the Revised Statutes ' •. ' 97 "An exaimination of the.adverse party and a discovery of his books cannot both be had in one proceeding ■. : 97 Discovery of books and. papers, is a, proceeding independent o'f the right to -fheir prodtiction on the trial, or by a party examined ■ , .before the trial 97 Order for inspection granted when contract provides for it 97 Action in equity will not lie . '. 98 Inspection of deed 98 Not a right — privilege given only in extreane; cases . . , : 9^ Esfamination of books denied where it would ihe a hardship 98 The manner is d.iscretionary with court 98 Where inspection' is in the discretion of the Special Term 98 Surrogate — 'powers of 98 Pojocedure — proper procedure to obtain inspection 98 DisBbvery of corporate' books — compelled by m,anidam.us 98 Practice in • proceedings for prcduction of books and pajpers 98 Requisites of petition for discovery. \. 99 Service of motion, papers ......; 99 If the discovery is insufficient or defective, an order to show caAise is, proper ( .' 99 For what purpose an inspection can be had 99 To frame a complaint — ■ granted ,.. 99 Inspection granted to enable plaintiff to amend complaint 99 « : When not graJited 99 To frame an answer, denied. 99 762 Index to Ncjtes. [See index to the rules, ante,^page 709.] DISCOVERY— (Continued): , , ' ' Procedure^ (Continued) : pagb. Not a,llawed after seryice of an amended complaint and before joining- a new issue jqo Must be afte^ suit brought. lOo ' When discovery not ordered before -complaint filed ^ 100 TOiat petition must. show., .:...., 100 Subpoena duces tecum '— discovery granted when subpoena dtices tecum is insufficient '. , loo A party under exaonination before trial — not required to pro- duce paper on subpoena 'dMces tecum 100 A party examined before trial, may he requir-ed! by subpoena duces tecum to produce books, etc. . . . / ■. 100 No discovery- where a subpoena duites tecum will suffice. ;, 100 Kemedy by subpoena duces tecum. . .:...., V. 100 When subpoena duces teeum insufficient. .....' ' . . , . 101 That a paper may be produced on the trial by subpoena duces tecum is not' conclusive V . . ^. . .' '. 101 ' ijj'ames — discovery, not allowed' -to ascertain ' 101 - Books — exaimination' of s with ulterior purpose 101 Laches — discovery, not granted where there is a want of due dili- gence ' .'; 101 Delay in moving. ,.....,. 101 Eeferee — power will not be delegated to 101 ■Certificate of a referee .^ ...,..."... 101 Affidavit or petition — application not denied, because made by motion instead of on petition '. . 101 Verification by attorney and not by party ■. — no affidavit of merits — insufficient . . . •.......;....._. • . • • ■ 102 Application by affidavit — ■ it need not be made by the party — contents . . . ' 102 Where the facts are peculiarly within the attorney's knowledge. . 102 The allegations must be definjte and positive 102 Must be specific and) positive ; .....:..... 102 Petition not sufficiently explicit. ;.....'-'." 103 liispeotion' refused! because! petition was not explicit. .' 103 On application to establish a partnership — motion denied be- cause of the indefinite nature of the affidavit.^ ICfe An affidavit, on information and belief,, is not sufficient 103 jVfere information and l)elief as to entries beiiig in existenoe,^i9 \ ins-ufficient . . . ;....'..... , . . . . 103 Advice and belief . , .^ 103 Tlie facts must be stated 103 Affidavit, on inform-ation and belief, when suffic^ient J 104 The papers should be specifically set fortli.'.'.j 104 Requirements as to the reriflcfition to the petition 104 ■'Index to Notes. . 763 [See index to. the rules, ante, page 709.] ' : . >ISCO VERY — (Continued) : ■ '' ,. , ' « "^ ■ P4.G-E. ■ It milSt be' necessary —; -wlien the necessity does not exist. .......... 104 * When,tke witness can be required to produce books. .' 104 Necessity therefor, must be shown'. .;.'.;, "... 104 Not allowed when olher relief exists .',-. . . '. 104- Application denied when the paper* could be produced, on, an ex- . amin'ation befoTe. trial A ..... i , . . .' 104 The applicant must show that he cannot obtain the information elsewhere , '...,;.;.., ■. . 105 Information obtainable by evidence of witness 105 Not allowed to see if, any .defense exists 103 When defendant's fight not dejfeated. • . . . 105 Inspection, when denied, to establish payment . . 10.5 ■ The e^dence.must be material. ;'....., .' ; . . . 105 Sealing ivp immaterial matter — right of a party producing books, . etc.,' to seal up portions thereof >.....,. 105 An affidavit that certain 'sealed portions of a book do not relate to' the case is sufficient to protect them- from examination.. 106 Proper procedure to cause sealed portions of the books to be opened ._- ..'.,.; ..:.].•..• -, 106 Whait d'ocTiiments — what documents parties "will be compelled to j>ro- duce' . .....J....... . .• ' 106 Of a plan, in anr action for breach of contract. . i 106 Of a duplicate contract , 106 A defendant 'in an action to foreclose a mortgage entitled to inspect it and have it photographed ..:...: 106 Inspection of instrument songht to be set aside as a forgery al- lotted ,. .' ; : . . 160 'Letters — production of, compelled , ■ 106 Letters and letter-J>ress, copies are papers And (foeuments 107 Letter in an executor's hands '. '. 107 Original letters deceived .J)y plaintiff's intestaie .> . .■ '.'...... l07 Exaainaition of a machine imposed as a condition ' 107 -Booka and ^l^^^i^^^nts -^to enable defendant to prepare a counter- claim . . . '. • . . : 107 That books contain false entries is no answer to an application . . 107 Compelling production of accounts 107 Books of a domestic corporation. . . . , i' 107 Of Ijoundary line ajid m:onum.ent. •. . .■ 108 ,In an action to set aside a preferential assignment 108 Assessment roll and warrant, when they must be dt>i'osited for .plaintiff's inspection '. 108 Deposit of a note -. 108 ■D&po'sitof bank books, ^etc. ..'.... ...■...'. a 108 Inspection of. g:ood'S replevined'. ..... .^ ....... , 108 764 Index- to' Note's.' [See index to the rules, ,nrefe, page 709-] DISCOVERY— (.Continued): X,- " page. '• When denied — inspection of letters denied '. lOS' Proof as to the existence, of the books . ' » lift ' Denial of possession of books '. 108'/ Order denying an attachment when a part only of the books are ' produced — hot appeajahle — proper remedy 109 Inspection not allowed', where the books could be produced on the , trial by subpoena, duces tecum. . . . . ., ■.•:• 109 Where the books of a physician contain confidential statements of his patients. :•.';. .' ; 109 Fishing excursion — > discovery of books .'. '. / . ......... 109 , Articles, when not submitted to the inspection of experts 109 , Inspection to determine value of bookkeeper's, services 109 ■ . Not allowed where there is a denial of possession of papers. . . . .- 109 .When defendants should explain lost control or possession 109 Discovery denie\i' because {)apers were not in . defendant's pos- session . . . . . . ! \ ' 110, Not .granted pending motion for reargument of an app'eal from- ,. ., 1 . an order denying it ■. . _..-.... ^ . .i. . . . . . . 110 ■'.'i,;"^ Suspicious applications — denied kj;'. ..■......;.. ...i •'•■-■* 119 ' ' ' Reference ordered ajter denial, of discovery, improper......../. HO- Denial after an examination of §. party before trial 110 Order made su^jject to the .party's riglit to a^ply^to be re- lieved therefrom ' . 1 10 Discovery and inspection not, allowed in an action f or, -libel. .. . Ill Not granted for the purpose of ascertaining' the names of -' proper parties ' Ill " First department^ — practice in . , '. ■ 111 Production of books and papers only required to aid the party in presenting his bwa' case. . .-. ' -r . .^ Ill Motion by one defendant to compel another defendant 'to pro- duce documents . '. '. Ill Discovery of papers not proper to 'enable the plaintiff , to ascer- tain the defendant's'' defense Ill Suit in equity for an accounting..'. Ill Description of document — documents must be described. .....!..-.. Ill What description of the document is required. . . . . : ,. ,119 The particular books and papers must be specified and their materiality shown .' ^ '... ...... 112 When' granted — that a discovery might -criminate defendan,t is no answer , '. ,.......,•;.. 112 The excuse that the discovery will criminate is a personal one — bar of the Statute of Limitations _.'_;- ': 112 -^ To frame pleadings ,...-....,'...: .■.-'. V 112 Examination of the books by an expert. ....... .; ./. 112 ' When inspection allowed in doubtful cases T 112 ' ' ' Index to ISTotes. 105 [See index to the rules, anle, page 700/ DISCOVERY — (Continued) : - !,Wlien granted — (Continued): .pace. Existehce of cause of action, not determined on affidavits 112 . Defect in moving papers supplied' by the answering affidavits. 112 iPacts requiring the granting of an order. 113 Material evidence in documents in possession of adversary 113 When it may he had in cases not provided for in rule 113 Libelous paper , , . 113 , ■■' Form of order — direction to deposit a paper fbr thirty days, or that all defenses be precluded, and that the party'be' punished for coijitempt, is .erroneous *. 113 When an order is improper as being too general 114 -j Wlien it is improper as being too limited.. , .' 114 : Books" particularized in the order ; ; 114 Order made by the court and not by a judge 114 ' Inspection not limited to the particular entry set forth in the moving papers ...■; .-. . . 114 Expense of copies, by- whom paid; 1 114 Proper order in , such case ' 114 Fof»;i of order j 114, Inspection of picture not permitted 114 • Service of order — order of discovery to be served on the attorney, and not the iparty 114 Sheriff — not directed to break open a safe, but party ordered to open it 114 Parties — the representatives of a, party can have no greater riglits than the decease'd had ......'....■ ' . . 115 A discovery from an administrator of the papers of liis intestate — when allowed 115 To what accounts, rendered by her depeased, an administratrix is entitled ,. , , 116 ' A guardi3,n ad litem may petition for discovery llo Corporation — .books of — since remedy by subpoena under Code of Civil Procedure, inspection not allowed 11.5 Agents of corporation will not be compelled to discover its books ! 113 Corporate books — directors 115 Examination of officers and agents of a corporation — distino- ' tion . ., . . . .' ; 115 Examination of the, president of a joint stock association be- • . fore trial ■. ! 116 Production of corporate books and papers required..: ;. 110 Corporate books and papers — how far, subject to inspection.. 116 ,Transfer of books of corporation 116 Foreign corporation — order for the inspection of its boqks — what ' :' it should require ...... • , . 110 766^ ^ ^NDEx TO Notes. [See index to the rules, ante, page Y09.] DISCOVERY — (Continued) : Porei'gn corporation — (Continued) : - page. Transfer agents of — chapter 165 of 1842 — application of, to. 116 Sworn copies of books of a foreign corporation 116 Partnership books — an absolute right thereto 116 "Administrator of a deceased partner, is entitled to an inspec- tion of -. 116 When a partner is not entitled to a general inspection thereof. 117 Inspection of books iby one sharing in the profits ; . 117 ^ Examination by an expert 117 Kenjedy by subpoena duces tecum does not forbid.' 117 ' Of firm account books — ■ when allowed 117 Partner's application to inspect books 117 JJooks of record, of a common venture 117 Inspection of firm books ." 117 Agency — a principal entitled to an inspection of his broker's books. 117 Inspection of books to estalblish an agency. . . /. 118 Conversion — inspection allowed to establish 118 Penalty — for a refusal to obey the order, should not be contained in it -. 118y Disobedience — recital of the penalty for 118 How punished '......... '. 118 Applies to a contiUnacious refusal only ; 118 Notice — musj; be given 118 Appeal — the order affects a substantial right 119 Not reviewable in the Court of Appeals 119 ■\\1ien an order denying an attachment against a party refusing to make a discovery is not appealable. . , 119 Oppressive order — remedy _....'. 119 When an order for discovery will notbe reversed on appeal 119 Order. refusing a discovery of partnership books reversed 119 Physical examination of plaintiff in action for personal injuries . . 119 DIVORCE — See Husband and Wife. JDOCKET — Of judgment .*...'....:. 68 DOCUMENT — Inspection of. See -Discjovert. DOWER — Effect of divorce on -. . . !...... . .'427 Computation of contingent dower right 414 EMINENT DOMAIN — Effect of condemnation proceedings on mortgage. 373 ENDORSEMENT — Myst be on the copy as well as on the original 48 Essential on notice to limit time to appeal .' 43 Concealed indorsement ...■.......,.- 48 The omission to indorse does not vitiate the paper — it is merely an irregularity . . ■. v 4S What is a sufficient indorSejnfent. . '. -. . . . 48 Admission of due and proper service ^v waives the defect of omit- ting the adctress of the attorney ■ 49 Of approval of sufficiency of undertaking •; 59 Index to Notes. ' ' Y67. [See index to the rules, atite, page 709.] PAGE. ENUMERATED MOTIONS 290 EVIDENCE — Reference — signftig testimony given thereon 183 Filing testimony given on 183 "Received on appeal ' 252 Certificate that a case contains all the evidence. See Case and Exceptions. EXAMINATION — Before trial; See Deposition. EXCEPTIONS — Bill of. See Case and Exceptions. Taken on a trial. See Teial. EXCISE LAW — Venue of action brought- thereunder. . .' 331 EXECUTION — Return of 61 Correction of return . ., 63 Excuse for not returning -. 63 Presumption that vrrit was execute"d during its lifetipie 63 May issue to collect alimony .' 166 EXTENSION — Of time to serve case 260 Of time to serve pleadings. See Pleading. PEES — Of referee ."^ 182 Of receiver 448 See Costs. FEIGNED ISSUES. See Tbial. PILING — What is 46 Who may file a paper 46 Where a motion is made out of court on notice ; . . . 46 Motion after judgment — ; papers, where filed , ^.. . . . . . 46 Judgment on appeal — papers, where to be filed 47 How compelled 47 Costs allowed on a, motion to compel 47 Presumption as to filing, as regards notice of lis pendens 47 Records delivered to clerk before nine, presumed to be filed at nine ; 47 Mling judgments and .issuipg executions thereon out of office hours 47 Notice of filing — when nqt necessary 47 ■ Entry of Judge's order not necessary , 47 Entering and filing distinguished 47 Failure to file — ■ effect of .■ 47 Rights, of the unsuccessful party 47 Injunction dissolved when papers were not filed 47 An attachment not vacated, because of a failure to file the papers . 48 Leave to file after the time — power of the court to permit it 48 An answer may be inserted, in the judgment roll, after the roll has been filed 48 Filing papers mine pro tunc 48 Meaning of " resided " in section 984 of Code 49 Compulsory — how filing may be compelled 49 49 768 Index to Notes. [See index to the rules, ante, page 709.] FILING — (Continued) : page. Destruction of records — power to destwiy records only exercised in exceptional cases 49 Business hours of county clerks .\ 66 FINDINGS — On a trial. See Tbial. FIRST 'PISTRICT -^ Procedure in, as, to the filing and confirmation of reports 183 FOLIO — Failure to folio papers .s 143 FORECLOSURE ^ Of mortgage. See Mobtgaoe Foeeclosuee. FOREIGN CORPORATION — Discovery of books of 116 New York statutes do not apply to mortgage executed by 374 As to service of process on . r. 137- GAME LAW — Venue of action brought thereunder 331 GUARDIAN AD LITEM — Guardian ad litem for plaintiflF need not be his general guardian 335 Appointment in violation of the rule 335 Infant married woman 335 Guardian nominated by adverse party will be remijved — power to appoint for ' non-resident infant 335 Irregularity in appointment of guardian ad litem 385 When irregularity in appointment of guardian will relieve pur- ) chaser under a judgment in partition 335 When appointment ia necessary '. 335 Who to be appointed 335 Appointment vacated ^ ~ 335 Guardian must be of full age 336 Guardian, who has appeared, must answer 336 Removal of 336 Cannot settle an action 336 Allowance of costs lo ' . , . 336 An allowance to a guardian on an ecc parte application — improper 336 Power of the court to provide for the compensatidn of a special guardian. ." ■. 336 Right of guardian to recover compensation from the father 336 Disiburaements of a brother appointed guardian ad litem before appointment 336 Where no guardian has been appointed the complaint should be jjismissed , 336 Failure to appoint a guardian in proceedings for the sale of land to pay debts does not deprive the court of jurisdiction. . 337 Failure to appoint a guardian for an infant plaintiff in an action does not deprive the court of jurisdiction of the action- 337 For an infant defendant is an irregularity necessitating reversal . . 337 Infant regularly represented is concluded like any other party.. 337 ' ' Indes to Notes. < 769' [See index to the rules, ante, page 709.] GUARDIAN AD LITEM— (Continued): ' pagk. Infant who contests a will by guardian does not forfeit her in- terest un(ier the will 337 Clerk of court nixist give security as guardian. . .'. 337 Guardian cannot enforce money judgment until security is given. 33T liable for costs :■:...:' ; 337 Guardian ad litem, for defendant is not 33® Waiver of right to security for costs :..... 33S Attachment for costs ; 338 liability of a plaintiff for the costs and disbursements of a guard- ian ad litem '. 338 Punished 338 For an infant beneficiary of a trust residing in New Jersey 338 Purchase by a 'guardian ad litem of an infant's interest in prop- erty — presumption against its fairness 338 Who may apply for the appointment '. 338". Petition for appointment of a guardia,n, addressed to county judge, but entitled and entered as an order of the County Court. . . . 33? ■ Aj)plieation for appointment made too soon 338 ■ Only after service of summons , 339' Otherwise in an action for partition 339 ' Waiver of defects of service by a guardian ad litem 33&' Effect of the infant's arriving at full age pending the suit.... 339' Compensation of .' 339 Who should bring action 339 GUARDIAN AND WARD — Who entitled to guardianship. 341 Eight of a surviving parent to nominate a guardian by will or deed 341 Trust company appointed where both parents are dead . . . ., 341 A non-resident alien cannot be general guardian 341 For a non-resident . , 341 What to be stated in the application 341 Powers of Surrogates' -Courts over 341 Appointment of, in Surrogate's Court — when notice unnecessary . 342' As to the surrogate's powers 342 Bemoval of guardian — surrogate may compel account 342 When the appointment will be reversed 342 Jurisdiction of the Supreme Court over minors 342 Powei-s of Supreme Court over 342 When appointment may be revoked 342 Proceeding by petition 342 Removal of guardian 342 Right to employ counsel 342 liability of Sureties on a bond of a general guardian 343 *70 Index to IsTotes. 1 [See index to the rules, ante, page 709.] GUARDIAN AND WARD — (Continued) : page. \^^len and in whose name suit should be brought against the sureties : _ _ _ 343 Surrogate's decree conclusive against a guardian's sureties 343 Liability of sureties , where a guardian has misappropriated funds. 343 Siu-eties liable for costs awarded against guardian' by the surro- gate 343 Allowance to guardian for necessaries furnished by him. before hia ' ajipointment • 343 Guardian to apply only income to his ward's support 343 Purchase by a guardian of his ward's lands: 343 Purchase of a ward's property by a guardian at a, foreclosure sale. 344 Guardian has no authority to carry on business in the name of his ward 344 Real estate purchased by a guardian under an order of the surro- gate 344 A surrdgate cannot authorize such purchase 344 Election by a sole legatee of the infant to accept the land 344 Purchase by a guardian in socage 344 General guardian — he may collect and sue for his ward's share of rent collected from premises ownefd in part by his ward 344 Right of infant to be brought up in religious faith of farther .... 344 Right of mother 344 Father of infant preferred 345 Rights of mother of infant , 345 Accounting 345 GJompensation ^ 343 Powers of guardian to impose restrictions upon ward's pi-operty. . 345 Negligence — what is not culpable negligence in a genei-al guard- ' ' ian. . . ; 345 Trust companies — appointment of, as guardian 347 Liability of sureties of general guardian 347 Sureties — ■ on bond, of special guardian .\ 354 Money arising from sale — when paid to guardian 356 HUSBAND AND WIFE — Service on husband for wife 134 Default in matrimonial actions — the rule applies only to cases of default. . . • 419 What need not be proven on default 419 Jurisdiction of matrimonial actions — dependent on the statute j^ 419 After the dissolution of a marriage no action for divorce will lie. 420 Wliat facts sufficient to show residence in this State 420 Joinder — actions for divorce and for separation cannot be joined .... 420 Contracts — agreement by n husband to support his wife living apart. 420 Agreement by a wife to share her alimonj'- with her attorney. . . 420 Agreement to live apart as a. consideration for a note. . . : 420 Agreement to renew marital relations — effect of its breach .... 420 Index to Notes. ^ T71 [See index io the rules, ante, page 709.] HUSBAND AND WIFE — (Continued) : Contracts-^, ('Continued )i -■ PAOB; The husband is liable for legal services rendered thd wife in an ' action brouglit by the wife for a. 'separation , . . 420 Keturn to husband under his agreement to pay costs and ex- penses : 421 Maintenance — decree for separation essential to one for mayitenarice 421 Adultery ^ what averments as to the adultery are sufficient . 421 Allegations as to time and .place of adultery 421 How adultery should be charged 42f How set .up in answer , 421 What allegations sufficient 421 Adultery of plaintiff connived at by defendant, no defense 421 What does not constitute a procurement or connivance" ......... 421 Decision sustaining finding of adultery not binding on the Court of Appeals 422 Finding of jury upon the question of connivance not in issue . . . 422 How connivance should be negatived 422 Judgment on finding of adultery in the absence of an afhrmative ~ defense 422 Verdict upon issue of adultery is conclusive ■ 422 Adultery of plaintiff ^ — a defense and ground of affirmative relief 42S Practice where affirmative defenses are tried in equity 422 What evidence is required to establish it 422 Counterclaim for annulment of the marriage — not good '422 Reference in divorce — proper form of order 422 Aflfidavit and proof as to connivance, and that five years have not elapsed '. 42.3 Proceedings void, if parties agree upon referee 423 Reference consented to — court to name referee. 423 Naming a referee ill the stipulation 423 When the cdurt cannot appoint another referee in place of the one agreed upon 423 Review of evidence on a referee's report by the judge '. 423 Court cannot set aside a referee's report and Order issues to be tried at Circuit 423 It can be reviewed only by the General Term 424 Court cannot consider the evidence where the decision is against the divorce ; 424 V Power of the Special Term over the report of a, referee in an action for divorce , 424 Trial of divorce suit — how conducted 424 ' How case noticed for trial _. 424 Issues must be settled, before notice of trial 425 Issues, only to embrace facts oontesteji by the pleadings 425 772 Index to Notes. .£ [See index to the rules, ante, page 709.] HUSBAND AND WIFE— (Continued): Trial of divorce suit — ^(Continued): page. What issiie improper 425 Right of third party charged, to attend, examine witnesses, etc. 425 Co-respondents may be served and appear ^5 Jury trial — of divorce suits — either party is entitled to demand a jury trial 425 It is a matter of right 425 ; It is not discretionary 425 ,: Finding of the jury — when conclusive 425 ^ Rejecting verdict : 425 ' When the court may correct the wording of the verdict 425 Where the jury disagree as to some .and agree as to one of the ; issues .^ 425 The coiistitutional right overrides the Rules 426 Waiver — as to issUes 426 Waiver of jury trial, 426 Notice for an equity term, ndt a waiver of a jury trial 426 Appeal — in action for divorce — what reviewable thereon — failure to move for a new trial. 426 Condonation of adultery — it should be pleaded 426 Evidence — in an actipn for divorce on the ground of adultery. ..... 426 A husband cannot testify to his wife's adultery 426 Evidence of husband for his wife 427 The evidence of prostitutes must be corroborated 427 Evidence sufficient to establish the fact of adultery 427 Dower — when a foreign absolute divorce will not bar dower 427 Effect of divorce on dower ,. 427 Judgment in matrimonial actions — forbidding guilty wife to uae her husband's name 427 i Awarding the custody of minor children is discretionary. 427 Foreign judgment of divorce obtained on service by publication • — -effect of a general appearance on a motion for alimony.... 427 Foreign judgment awarding custody of children — effect of 428 Effect of a foreign judgment for divorce where' service is made by mail I 428 Special Term not to vacate, add to or subtract from the referee's decision in divorce . . -, - , 428 Rule as to judgments, has force of statute 432 On consent of defendant prohibited '. 432 Vacation of judgment in matrimonial actions — proof required for ' the vacation of a judgment 428 Motion to set aside for fraud — proper practice — affidavit of de- fendant competent ' 428 Default in payment of alimony — laches 428 ' Index to Notes. TT3. [See index to the rules, ante, page 709.] HUSBAND AND WIFE— (Continued): Vacation of judgment in- matrimonial actions — (Oontinued) : ' PApE. Remarriage not conclusive on a motion to open a default 428 Remarriage — out of this State — after divorce in this State for- bidding it 428 Alimony — income of a trust fund may be reached under a judgment for alimony ; 428 Decision as to alimony and counsel fees cannot be reversed until final judgment 428 Reservation in the decree of the right to apply for alimony 429 Enforcement of a foreign judgment for alimony — by execution. 429 Failure to pay alimony not excused by poverty 429 Proceedings to compel payment of alimony 429 Cannot be enforced after death of husband 429 Alimony cannot be awaWed in an action to annul a marriage . , . 429 Separation — action for, brought by wife — return of the wife to the ' husband terminates it , 429 Action to annul marriage , '. . . 430 ILLEGIBILITY — Of motion papers 143 INCOMPETENT — Sale, etc., of incompetent's real estate 348 INDEFINITE MATTER — Motion to make definite and certain.. 152 INDE^ — Omission of, from case on appeal 305 INDORSEMENT. See Endoesbment. INFANT — Sale, etc., of inf ailt's real estate — power of court 348 A mortgage given to pay the debt of another — the court is without jurisdiction to order it 348 Power of the Legislature to order a sale of infant's land...*... 348 Power of the court over' the proceedings — ^continuous during minority 348 Powers of guardian 348 Sale contrary to the stat^te — void ., 348 Non-compliance with the rule — doe's iiot invalidate the sale .... 348 Possession in fact or law — not necessary to authorize 349 Of equitable estates 349 Expectant estates and estates in remainder 349 Contingent interest of an infant cannot be sold under the statute 349 Estate of infant trustees 349 Application for sale of infant's real estate — by whom made 349 1 Corroborating affidavits and petition by general guardian — may be dispensed with > 349 Infant need not join in petition 349 Form of petition 349 WJien irregular 350 It should be addressed to the "Supreme Court of the State of New York" 350 Where made ' 350 774 Index to Notes. [See index to the rules, ante, page 709.] INFANT— (C^ontinuedy) page. Bond — of guardian to sell infant's real estate 350 Sale to pay debts — special guaSdian cannot dispute such debts... 350 Order — form of, in proceedings to pay debts 350 - Deposit without delivering to the depository a copy order direct- ing it , 350 Deed — may be executed by a special guardiSin in his name as spe- cial guardian 350 County Court — always open, for proceedings for sale 350 Lease — powers of a Court of Chancery to lease an infant's real estate 351 - Allowance to a guardian for expenses — suing as a poor person. 351 Mortgaging infant's real estate — powers of the court relating -thereto, etc. 351 Use and income of property given to executors in trust until in- fants become of age — the remainder vests and may be mort- ,, gaged 351 ' When a mortgage, including the interests of infants, need not state their proportionate liability 351 • Mere irregularities in proceedings to mortgage are not ground -for setting the mortgage aside. 351 Exchanging and ' riiortgaging infant's property — powers of County Court relating tbereto 35a Eef erence — when unnecessary .' 353 Sureties — justiflcation of 353 ■ Unauthorized- act of a guardian for which his sureties are not - -liable . . . : 354 Upon a, guardian's bond, not discharged by a judgment fraudu- lently obtained ■■. 354 Laches 354 Costs — ■ when allowed in excess of twenty-five dollars 355 In proceedings to compel a special guardian appointed to sell the real estate of an infant to pay over the proceeds 355 Investment — ■ in land beyond the jurisdiction of the court — order directing it is void 355 'Guardian of. See GtiASDiAN asd Ward. INJUNCTION — Failure to file papers — relief granted 53 Failure to state the grounds of injunction 94 Order confirming the report of referee as to damages for injunction . . 1S3 INQUEST —Not applicable to equity actions 158 Appearance by defendant, though no aflSdavit filed 167 Trial — before the court 117 Plaintiff must prove his case, if there be an answer......... 167 Defendant may examine plaintiff's witnesses 167 Counterclaim not replied to must' be allowed 167 Inquest not proper after discharge of the jury 167 ' Index to JS'otes. ' 775 ^ [See index to the rules, ante, page 709.] INQUEST — (Continued) : page. When set aside — because of unexpected absence 107 l^eview — how obtained -^ judgment taken on an inquest must be reviewed by motion and not by appeal. . . . / 167 iServiee of affidavit of merits — before first day of term 107 On second day '. 168 Verified pleading — no inquest 168 Equity cases, rule not applicable to ' 168 INQUISITION DE INQUIRENDO — Costs of 116 INSANE. 'See Lunatic. INSPECTION. See Discovery. • , i . INVESTMENT — Of proceeds of sale of infant's real estate 355 Of moneys paid into court 411 IRREGULARITY — In service of process.' 130 , In copies of papers. .;.... , ; .■ 147, Motion based on i 275 In judicial sale ; . . . ; 385 IRRELEVANT MATTER — Motion to strike out 148 ISSUE — Note of. , 'See Tkial. learned issues. See Trial. JUDGE — Who may not sit in i;eview . . . j . . 9 JUDGMENT — Authority to enter judgment . .' 66 Signing and recording judgments — judgment book 66 Omission of the clerk to sign a judgment 66 Service of a copy of a judgment without the attestation of the clerk is effective to limit the time to appeal 66 Judgment can only be entered according to the decision rendered. 66. How far it is necessary to enroll a decree 67 What constitutes ; . . 67 What is not a judgment 67 The entry made by the clerk on receiving a verdict is not the judgment. . . ^67, The record constitutes the judgment in common-law actions . . . . ' 67 Judgment ' book and docliet distinguished. . .■ , .' , 67 Entry of judgment on a verdict 67 I>uty of clerk as to its entry in the judgment book 67 Judgment not perfected until entered in the .judgment -book. ... 67 Only one decision proper on several demurrers 68 Delay of the clerk in entering a decree in the judgment book does not affect ita validity ., 68 Delay of a clerk to enter a, judgment of which he has given a , transcript 68 Proper judgment where plaintiff recovers less than $50 and defend- ant recovers costs 08 Decree, date of • 68 776 ' Indsx to Notes. [See index to the rules, ante, page 709.] JUDGMENT — ( Continued ) : page. Motion in arrest of judgment must be for defects appearing on the record ^ 68 Duty of clerk as to judgment roll .• 68 Time for entry ' -.'..... 68 Entry nunc pro tunc 68 Docket — when a decree in equity should go on the docket 68 Sufficient to sustain an execution, though no entry is, made in the judgment book' ........' 69 In county clerk's office, of judgment of United States Court 69 Lien — docket, unnecessary except to .create a lien 69 When the lien attaches 6d Failure to index a judginent avoids the lien 69 Wl^en the judginent is filed. with the clerk out of office hours. ... C9 Lien suspended on appeal and restored 69 Continuance of lien ! ^ 69 Duration of lien • ■ • ■, 69 Judgment against executors — what is bound by 69 , - Iiost judgment roll — presunLption as to 68 Errors — amendment of , .' 69 ■Failure to folio a judgment is omerely an irregularity 143 Default — ^ practice where only part of the defendaotits are in default. . 164 What notice is suffiteient to justify entry of judgment 164 What notice is insufficient 165 Judgment on defaiilt — liot more favorable than asked for. ..... 165 A report must be made and filed on a reference 165 Order of default — not necessary ■ 165 Proper form of notice of assessment of damages '. 165 Application when, pjoper at Trial Term ; . . . 165 When time to answer is extended 165 In general . ■ 165 Ejatry of, in special proceeding »-. 166 ~ Jn foreclosure 364 Deficiency judgment in foreclosure '. '. ' 374 On default in matrimonial actions '. 419 In matrimonial actions " ^. . . 427 Vacation of judgment in matrimonial actions 428 JUDICIAL SALE — Sale, etc., of real estate of infant or incompetent . . . 348 Publication — time of 378 When sufficient 378 Week defined .-t . 378 ' . ' Natiee of sale — need not ibe published in all the editions of the ' ' paper ■ .'. 378 Notice of sale 378 The title of the cause should be briefly stated in the, notice. . . . . 378 Amendment of judgment pending notice of sale 378 What publication is a newspaper. ' 378 Index to Notes. 777 [See index to the rules, ante, page 709.] JUDICIAL SALE— (Continued): page. iSale — relative rights of purchasers 379 What title' is acquired by the purchaser 379 Codte of Civil Procedure, § 1440, not applicable, when 379 Duty to collect purchase price fit time of sale 37?^ Incumbrances — leasehold' property 379 Rule applies to plaintiffs, mortgagees in possession 379 Error in notice of sale ' 379 Who may object to the manner of oonducti,ng a sale 379 When set aside 379 Opening sale discretionary ^- not appealable , 379 Order setting aside sale and directing reference to ascertain equities of parties 379 When property should be sold as a whole 380 Position of an auctioneer 380 Dispos.itiou of the percentage paid on a sale where the pur- chaser defaults after assigning his bid 380 Judgement ' directing' sale by receiver — remedy is by motion 380 Terms of — purchaser bound by. ..'..., 380 Inverse order of alienation — right to a sale in 380 Limitation of the rule 380 Primary liability of land conveyed subject to the mortgage 380 . Successive mortgages 381 Of land out of the State 381 Rule one of equity only 381 Where surety and: principal own separate, undivided shares. ..... 381 Safe valid although the pieces are sold in am improper order. . . . 381 Uotiee — purchaser chargeable wiiJi notice of existing conditions... 381 Assignment — when notice thereof to the mortgagor is unneces- sary '. 381 Misdescription of an agreement in. notice of sale 381 Irregularities appearing on the face of the proceedings 381 Outstanding interests not referred to in judgment, but subject to which the sale is made, afford no ground for refusing to com- f plete the purchase 382 Mortgagee purchasing with notice of an unrccordedi deed ^^^ f Resale — must readvertise for 382 Resale discretionary — conditions -of 382 Not reviewable in the Court of Appeals 382 When ordered 382 Terms of such resale 382 Condlitions imposed on granting a resale 383 Resale ordered where a promised notice was not given 383 Sale under railroad mortgage not affected by the fraudulent de^ fault of the directors i 383 TVS Index to Notes. [See index to the rules, ante, page 709.] JUDICIAL SALE — (Continued) : Resale — (Continued): ' PAGE. Inadequacy of price, not a sufficient ground 383 When ordered for inadequacy of price , 383 Not ordered merely because a higher price is anticipated 383 Inadiequafty of price and insanity of mortgagee not a ground for a resale 383 When sale Under execution will be set aside for inadequacy of price 384 Inadequacy of price 384 . , What constitutes laohes a.nd. insufficient ground 384 Resale ordered where facts exist, casting suspicion on the sale had 384 An agreement to bid for another, when violated, is a ground for. 384 Mistake of purchaser, justifying '. ; ._ 384 Sale in parcels ,. 384 "Difference and costs and expenses on the resale" — subsequent taxes included within i 385 Foreclosure of a railroad mortgage — when a sale, "had under a decree in, will no't be set aside . . . : 385 Irregular sale — who may move to set it aside 385 Sale of corporate property not set aside on behalf of a minority stockholder 885 Saie void, when summons was served by pviblication and no prop- erty was atta,ched 385 .Broper form of execution where an attachment has issued. . . .'. . . 385 Insolvent corporation — sale of its assets without notice to the Attorney-General 385 Irregular appointment of a. referee to sell docs not vitiate the sale ' - 386 Order of confittnation cures the omission of " a portion of the " land from advertisement t>t sale ., 386 Partition suit irregularly brought by the life' tenant — the title acquired good 386 Partition sale — purchase by a guardian in his own name 386 ! Who may attack an irregular sale < 386 Adjournment — the attorney can postpone a sale ....'...,...., 386 Sale in violation of a referee's promise to adjourn it 386 Stay of proceedings — effect of 387 Auctioneer's fees on. 3®' Day to which it is had should be named 387 Taxes — who liable for taxes, etc. . '■ 387 Terms of sale stating what taxes and assessments would be al- lowed 387 Agreement that a disputed assessment shall not be paid out of the proceeds — the municipality cannot object 387 Index to Notes. 779 [See index to the rules, ante, page 709.] JUDICIAL SALE— (Continued): , page. Purchaser released — when he has been misled 387 Want of authority iti attorneys ; , 388 Error in describing the owner of the equity of redemption in the summons '. 388 Sale suhiject to a mortgage already in judgment — purchaser re- lieved 388 Purchaser entitled to a good title 388 To a marketable title , 1 . . . 388 Curing defects : 388 Defect of title through non-joinder of parties .- 389 - Delay in perfecting defective title excuses purchaser. . . . , 389 Unpaid transfer tax 389. night of way over the- land i.'. 389 Want of a provjision in a judgment of partition for unknown re- maindermen 389 Purcihase under an honest misapprehension 389 Sale cajinot be enforced with deduction from price for defect. . . . 389 Premises destroyed by fire 389 Destruction of premises before the closing of the sale 390 Not released — creditor's suit — based on an order directing a pur- chaser at a judicial sale to pay damages. '. ^90 Grold clause in mortgage not a defect in the title 390 Unsatisfied mortgage apparently barredl by the statute 390 Presumption that judicial proceedings arei regular 390 Order for publication of summons having a court caption 390 Failure to file report of sale , '. . . . 390 The purchaser may stand upon referee's deed. J 390 Not relieved by a mere possibility of failure of title 390 Defect must be substantial 391 ■A mere possibility of defect does not affect the title 391 Title not unmarketable because a turnpike road once crossedi the lajid ■ '. 391 Sale of right, title and interest only 391 Failure to appoint committees for luna,tie defendants 39 1 Purchaser at, not relieved because of- irregTilar service where jurisdiction is obtained 391 Partition — ■ erroneous «onstruction of a will, not objected to 391 -Purchaser not. relieved on account of defects of title of which he had notice 392 A slight variation in measurement is not a substantial defect. . . . 392 . Encroachment of a wall on adjoining land 392 Party- allowed to come in and defend after the sale 392 •Foreclosure by advel-tisement 392 780 Index to Notes. , [See index to the rules, ante, page 709.] JUDICIAL SALE— (Continued): Not released: — (Continued): page. Defective letters of axiministration 392 Void) process » . . 392 Revenue stamps must be affixed to a referee's deed 392 Judgment in partition conclusive where all parties in interest are brought in 392 Remedy where the purchaser fails to complete the purchase 393 , Practice where the purchaser fails to pay the ten per cent 393 Assignee of bid — when he may be compelled to complete the purchase 393 Compensation for imimaterial defects 393 Dower -^ effect of a. sale, in reviving right of dower 393 Record! — effect Of recording assignment pf mortgage 393 For what necessary 394 Purchase of land from the mortgagee after the assignment of the mortgage , 394 Recording a. mortgage in a deed book 394 Assignment of mortgage acknowledged before one of the as- signees 1 — record thereof is invalid 394 Failure to affix stamps required by the Revenue Law 394 ..Deficiency — judgment, for deficiency against legal representatives. 394 Warranty — in prior deed — right of a purchaser at a foreclosure sale' to recover thereon 394 Senior incumbrancers — made parties, to a foreclosure, may demand foreclosure of senior mortgage 394 Adyerse possession — title founded on, sufficient 395 When a purchaser will not be compelled to accept a title based thereon J 395 Title — acquired on a mortgage foreclosure sale 395 Void process — hona fide purchaser under 395 Isfotary — what notary cannot be referee to sell 395 Hamilton county — notice of sale in — in what newspapers pub- lished '. 39S New York city — fees on sale 39& Liens on proceeds — nature of 39T Liens determined by date of foreclosure sale 39T Judgment creditor's lien 397 Lien extinguishecl i 397 Claim on surplus moneys extinguished 397 Surplus moneys — creditor's lien extends to 397 Lien of an attorney on a judgment, will be protected 398 Attorney's remedy for compensation 398 Priority of a lien creditor 398 Judgment confessed for partnership debt 39$ Index to Notes. ' ' • 781 ,, [See index to tlie rules, wnte, page 709.] JUDICIAL SALE— (Continued): Surplus moneys — (Continued): . page. Subsequent incumbraaicer, without liotice — haa no claim upon surpMs , ; 398 General creditor should be made a party to tlie proceeding...'. 39S Where second mortgagees have priority over judgment creditors whose judgments, are prior in date of docket 398 A junior m'Ortgage taken as collateral security for another obli- gation . . ; : . . . 398 An unrecorded mortgage has priority over a suhsequent judg- ment 398 The mortgage first recorded is presumptively the prior lien . . . 39? ' Such presumption may, however, be oyercome. ^ 398 Puifchasers of land sold under exfecutioh have priority over junior judgments '. ;...'.. 398 Distribution of — notice of claims 398 Necessity of notice to creditors of deceased mortgagor 398 Tenant for years — has an equitable interest in 359 It goes to the heirs of the mortgagor 399 ' It stands- in place of laud sold — widow^s dower.... 399 When the value of an inchoate right of iower will not be paid to 'the husband . :; '.'.. 399 What liens "share in surplus ■ 399 The filing of a lis pendens creates no lien 399 The owner of an easement is entitled to sharct in the surplus . . 400 Mortgages given by a life tenant and by remaindermen — dis- tribution of surplus arising on a foreclosure thereof 400 Inchoate right of dower . . . , 400 Effect of former judgment 400 A pending prior action, not a bar to a proceeding to distribute i surplus moneys j . . . . ; 400 When a claimant is not barred from application for a reference ' by a summons served upon another claimant 401 Court has no power to displace a prior lien in, favor of a subse- quent one : 401 Form of orders for paying out. .' 401 Judgment — secured on appeal 401 Lapse of judgment -lien before foreclosure sale. 401 Notice of application to confirm i-eport of referee though no ex- ceptions be filed r 401 iSurplus moneys on a sale in foreclosure to be regarded as r realty — where; an action relating to them must be brought. 402 A claim may be prtesented and established! by the plaintiff a» well as by any other person 402 Distribution of -^rights of junior mortgagees considered. 402 Reference in surplus money proceeding — it is a special proceed- ing ■ .! 402 T82 ' Index to Notes. [See index to the rules, ante, page 709.J JUDICIAL SALE — ( Continued )■ : Reference in surplus money proceeding — (Continued) : page. Order of reference — oTaject of 402 Referee inay inquire as to the validity of liens and conveyances. 402 Power of referee to determine claims arising under a second ' mortgage 402 Usury — may be set up by junior as against senior claim.. .. . 402 Certificate of clerk . . .s 402 Duty of referee 403 Neglect to file notice of claim 403 Proof of claim 403 .iPower of court over referee's report 403 Notice of application to confirm report. 403 Default in appearing on reference ,. 403 Appeal f rom .^ order as to surpllis moneys — when reveiwable in ^he Court . of Appeals : ., 403 What order is not final and is not appealable to the Court of Appeals 403 Costs in surplus money proceedings — what costs are allowable . . . 404 JUNIOR MORTGAGEE — Rights of 371 JUSTIFICATION — Of sureties. See Undeetaking. LACHES — Relative to the right to a discover^ ■ 101 Precluding a defendant from moving to set aside a judgment for .non'servioe 133 / Dismissal of action — : failure to prosecute 263 In filing note of issue 292 On motion for a change of venue 331 Delay in failing to serve a case on appeal. See Case and Excep- tions. LEASE — Of infant's real estate 351 LIEN — Of judgment :..... 69 Of attorneys 84 Enforcement of 90 Reference to report on 183 Effect of foreclosure on prior lien 369 On proceeds of sale of mortgaged premises 397 LIFE ESTATE — Computation of — value of. 414 LIMITATION — Of action in relation, to foreclosure actions . . 361 LUNATIC — Sale, etc., of incompetent's real estate 348 -Costs — authority of committee to pay 419 Discretionary ^- not allowed unless proceedings are for tlie benefit of lunatic 416 Costs where the lunatic dies before the confirmation of the inquisition • "^ Duty of committee to see that the issues raised by an alleged lunatic arc properly tried ^lo ■' " ' Index to ISTo-rEs. 783 • [See iiidex to the rules, ante, page 7,09.] ' MARKETABLE TITLE. 'See Judicial Sale. MATfilMONIAL ACTIONS. ' See Husband and WiIte. MERITS — Affidavit of. See Affidavit , of Meeits. page. MINUTES — Of stenographer- ; 2S4 MORTGAGE — Of infant's real estate ...... :... 351 ,■ MORTGAGE FORECLOSURE — Proper parties to a foreclosure suit.... 398 '' , Wlien a bondholder may bring it , . ■ 358 A failure by the trustee, to foreclose for a long time after a ■ default . , 358 -' , Wife not personally served with, the summons in a mortgage ' foreclosure — ^ judgment hot vacated ' :,). 358 rPerson not made a party .in hi's official capacity 359 When it binds a general assignee made a party in his indi- vidual capacity . .,.....' , . . 359 All having a right, to redeem made parties 359 Any person liable for the debt ., 359 The people ,.i..' ....:.'. 359 .■ i When a prior mortgagee is a proper party 359 ' Mortgagor a necessary partj', although a receivej has beeri ap- pointed ; 359 A jrior assignor is a proper party 359 Paramount claimants made parties 359 DOTvress claiming under paramount title. . 360 Title of infant defendant not cuti off , 360' Who are proper parties ' 369 Action on bond for deficiency on foreclosure in another state. . 3(50 Pijblic policy — mortgage given to indemnify bail 360 Mortgage taken by a life insurance company on property not ■Worth fifty per cent more than the loan ; 360 Purchase iby the mortgagee of the equity of redemption 361' Appearance — after judgment . . 361 When a, party Appearing is not entitled to notice of a liearing before the referee ........' .* , 3'61 ^fter _ appearance — notice of computation of amount due 361. Statute of Limitations ^ — it does not run in favor of an absent, ' mortgagor . _ 381 Reference — form of order of reference to examine, etc 361 ,Not granted where some of the defendants are not served. . . .,. 361 Nor upon a failure to appear on the trial, where an answer has , been interposed . . .' 368 • Practice where some defendants answer" and some do not....... 362 Including inquiry as to amount due and the trial of issues — , when irregular ■ . • 382 .' To- compute amount due — affidavits on motjon for 362 ,r , ' 50 ^ ' ' 784 Index to !N"otes. [See index i to the rules, ante, page 709.] MORTGAGE FORECLOSURE— (Continued): Reference — (Continued): _ ^ , PA( How affected by the amount demanded In the complaint. ...... 3i Duties of the referee — amount due ' 3i Sale — additional compen«p,tlon to the ref er«e . a A referee is entitled to be allowed his disbursemeilts 31 Allowing set-off^^ accounting . 3( Extent of examination by 3* Proceedings on the reference. ^ 3( Affidavit cannot be received as prpof 3< Proper practice as to proving the bond" and mortgage on . . j, . . . 3< Recital of bond in mortgage. 3< The referee need not find the several items 3( Nomination of the referee .- . . ..'. 3( When there are absent defendants, form of order .' 3( Report — should show facts and an abstract of the documents.... 3( Where the mortgagee has ibeeii compelled, in order to preserve' his security, to pay rent, or tp pay taxes . . .'. 3( Confirmation of the report 3< Effect thereof '. 3< 'Court confirming, how composed 3< Impeachment of. as to terms of sale, by affidavit Si What is a sufficient direction for the entry of a judgment ..... 3< Estoppel — assignor estopped from alleging payment of the mort- gage 3< Trial — unless reference is ordej^ed, the trial is to be in the same county as the property .' 3( JTudgment- — variance between it and tlie referee's Report — remedy. ^.( Judgment of sale — not interlocutory 3t Final only for the purpose of review 3( Liability upon the bond 31 Effect of a judgment of foreclosure W Effect on the mortgage. * When interest of parties becomes barred 3( The judgment does not affect a pa.rty claiming under a para- mount title ; .- 3* Does not prevent the defeat of the mortgage under-ihe Statute of Limitations . ^ ■ - • * Cannot sell priorities and equities of subsequent incumbrkn'feers. 3< When such a judgment is res adjudicate against a mortgage.. 3< Scope of judgment ,■ • ■ • ■ 3i Foreclosure of mortgage not due at the commencement of the ^ action 31 What questions may not be raised collaterally. - 3( An order for a special clause to be inserted therein cannot be granted before judgment 3i Index to Notes. 785 [See index to the rules, ante, page 709.J MORTGAGE FOEECLOSURE — (Continued) : Judgment — (Continued): page. Judgment where restrictive covenants were entered into sub- sequent to the execution of the mortgage 367 Motion for judgment under this rule — when proper 367 What direction of judgment is not a decision. . , 367 Sale of lands not described in the complaint 367 Reinedy - -. 367 •Right' of redelnption given in a decree 368 Relief available to defendant in an action to set aside a mort- gage and to restrain foreclosure '. ■ • • ■ 368 Death of the owner of the equity of redemption after interlocu- tory judgment 368 Judgment vacated- — judgment and sale on foreclosure set aside jto enable service to be made on an infant . 368 When a judgment and default will be set aside 367 Circumstances under which a judgment of foreclosure and sale will not be set aside 368 Premises out of the State — foreclosure of mortgage on. 369 Action for the strict foreclosure of a mortgage upon, lands -Situated in another Stat^ — when the courts of this State \ ' have jurisdiction /over it. ...... i .' 369 Land in another State — to be sold and conveyance to be ex- ecuted by the mortgagor .' '. 369 Amendment of judgment, requiring the mortgagor to execute a conveyance. . . . '.-, 369 Action on bond in this' State 369 Prior liens — ' effect/ of a foreclosure on prior liens — right of subro- gation. 369 Effect of a foreclosure on a prior dower right 369 Priority of judgments on land conveyed in fraud of creditors — dower 370 Purchase-money mortgage presumed to be a first lien 370 Voluntary future advances only, postponed to subsequent lien. . . 370 Parties — prior lienors ,- 370 Subrogation — when proper 370 Who is a stranger and volunteer* , 370 Purchaser of mortgaged premises is not entitled to subrogation ■^ to the extent of moneys paid on the mortgages 370 Advan<5ing money to discharge lien .' i 371 Effect of quit- claim deed given to holder oi mortgage ^ 371 Junior mortgagee — redemption — a tender, by, does not discharge the lien of a prior incumbrancer 371 ■ ' Redemption by a junior mortgagee not mside a party 371 ' , . , Righi of dowress to redeem' ' 371 V86 ' Index to IiIotes. ', ■■ [See index to the rules, a nib, page 709.] MORTGAGE FORECLOSURE— (Continued) : Junior moi'tgagee — (Continue^) : ' .j Junior incumbrancer not made a party to tha action Lea;Sehold interest — foreclosure of mortgage on Eight of a junior mortgagee to take an assignment Rents and profits — ^ power to appoint a receiver of rents and profits. . When proper ." When' a receiver of, will be appointed '. Relative riglils of senior and junior mortgagees s , Receiver appointed although principal sum is not due Appointed without notice, where the summons was served by pub- lication , .■ Proof authofizi ng the appointment ..'...... .'........ A receiver's clause gives, no absolute Tight- to have a. receiver appointed ; What rents are recoverable by him , Payment of rents, on a subsequent mortgage ■■. Second receiver in foreclosure. , .,i '. . . . Right of a junior incumbrancer h hen a receiver is appointed on his -application Mortgage Upon — when retrospective, discussed Receiver of — liability of the tenant to, him After-acquired propert.3'_, . .' Condemnation proceedings — effect of, on a mortgage . . . -. Surrogate — when surplus monej'S are to be paid over to him Surrogate's jurisdiction over surplus money is constitutional.... tVlien 'surplus , should not be jiaid into the Surrogate's Court Title — _ when acquired Defense of failure of title , Foreign corporation — taortgage negotiated by . . .-^ Taxes — when foreclosure will not be decreed for non-payment thereof Deed — form of . . . ' tteflcieney — assumption clause in deed does not of itself create a liability for i, '. j ■ ■ Judgment for, must be decreed in tlie Judgment for sale Cannot be entered until after a sale Resale — wlien it does not/ relieve one liable for a deficiency Title acquired at a foreclosure sale ;;..^,. Liens on proceeds of sale ' .\ . ,'. . , Surplus moneys Proceedings on reference in surplus-money proceedings Stay of sale in foreclosure • Sale of mortgaged property. See JnDioi.\L Sale. MOTION AND ORDER — Definition of order .'. .' Order to bo submitted to adverse party before entry . . ; Duty o.f attorney, not of judge, to see that the order is proper.. Index to IsTotks. 787 [See index to the rules, ante, page 709.], MOTION AND ORDER— (Continued): page. Order, by whoiia entered '. , \ Jii'- 5 1 When the unsuccessful party, may enter the order ' . . 51 Tl^itj of the clerk to enter tlie order — party not prejudiced by his failure to do so ; . 51 Entry of ; — during session of court ........'. ; . . 51 Decision ineffectual until order entered — date to be tliat of entry of order 51 Order vacating injunction must be served and the papers filed be- fore if talies effect . . . . , '. . . '51 Appeal proper, only after order entered and papers filed. ... ^ .. ..'^51 Chamber order — must be 'filed in the department in which the, appeal is taken .51 Appeal from chamber order of county judge — propar only after entry of the order 51 A chamber order need not be entered ,,. ...... .-, ._. .52 Order signed by county, judge on a County Court caption, a .cham- , . ber order 52 Recital in order : -. 52 It should specify the papers read ,.......:. 52 What recital is too indefinite 52 An order sjxould recite all papers used on the motion 52 v ' , Conditions vchen not imposed on a failure to recite in the order and to file an affidavit used on a motion 52 , • Resettlement of an order vpliich does not contain proper reoi,tals . . 52 Rfesettlement, not allowed to effect a, renewal of a motion ...... 53 ' ' Power of justices of the Appellate Division as to granting orders 53 ' • . Court cannot, direct that papers used upon a motion need not be printed in the appeal book 53 , Non-enumerated motions — what are . ..\ ....-......_.. 53 ' ' For what day noticed... . . i .....' ', . . . ." .,:..:. 53 motion, where made ...'.. 53 Form of order for discovery 113 Failure to folio motion papers. 143 Illegibilitytr^of motion papers^ — motion will be denied for that rea- son . . : ,, 143 I ■ Notice — when for other than first day of terpi . J46 Order to show cause must be retm-nable the first day of the term 146 Copies of papers. — ^omission of the jurat, to a copy of an affidavit — not fatal 147 Copies served should include signatures, etc : 147 Relief — in case of an omission to serve copi'cs 147 The pleadings are not included in the papers required to be served 147 Papers served on a previous .motion need not be reserved, 147 "What papers read on motion 147 '-'■■ Form of order of surrogate 147 788 Index to I^otes. ' [See index to the rules, ante, page 709.] MOTION AND ORDER— (Continued): p Return — to whom to be made i Indorsement stating defect Objection — must be lexplicitly stated .* Jurisdiction of the Appellate Division — over motions Further return to writ of certiorari Previous' applicatioii — fact as to, must be stated in supplementary proceedings Elifect of its not being stated Only an irregularity Order may still be granted , Leave to renew was formerly unnecessary. . . . ■. Decision on a motion is not res adjudicata Omission to' enter order does not authorize a new application .. . •Attorney's fees — docket of order for, improper Judgment — entry of, in a special proceeding. . .' Execution may issile to collect alimony .-; Also ,to collect money directed to be paid from a trust fund: . . . Enforcement of a judgment against a dissolved corporation.... A receiver may enforce by execution a judgment between other parties which requires money to be, paid to him 1 Contempt — order not enforcible by execution, may be by proceedings for contempt 1 Mode of service of notice — it must, as a rule, be served' personally, if not otherwise prescribed S Nature of notice of motion — it cannot be vacated or quashed on an independent motion : ; 2 Order tp show cause — requisites of order to show cause .2 Does not indicate any opinion on -the _part of the court 2 Powers of county judge, consddered 2 When he cannot grant it '. 2 Surrogate's Court — ^^not applicable to. , 2 ■ Order of surrogate exempting an estate from transfer tax 2 By whom it may be made ■. 2 May be granted by the judge , 2 Kule applicable> only to incidental applications 2 Not binding on the court 2 Where returnable — by whom made ; 2 Returnable at Special Term held with circuit ,. .' 2 When ,made — within what time and when returnable 2 The length of time is discretionary. 2 Order returnable after eight days i . . .^ 2 When the rule and Code not applicable to it 2 Order discretionary ^ s . . 2 Order returnable on Sunday — void 2 ' Index to Notes. ' ^789 [See "index to the rules, ante, page 709.1 MOTION AND ORDER— (Continued) ; Order to show eause — (Continued) : Aimended nunc pro tunc 272 What a sufficient reason for short notice of motion to vacate an order of arrest . .r 272 Not proper when defendant is not under arrest 272 ifor to bring o» a motion already noticed for a diflferent place . . 272 Defective order — not set aside after an admission of service given 272 Behearing on order to show cause before same ji;idge 272 Necessity of re-signing order! 272 Resettlement of order 273 • Granted after expiration of time to appeal ; . . 273 Inherent power of the court 273 It ia an order and not a alternative writ of mandamus 273 Irregularity — What is not a motion to set aside for irregularity... 275 Failure to file- papers, not a mere irregularity 275 When rule as to specifying irregularities is inapplicable 275 To what case the rule is not applicable 276 Issuing an execution in violation of a stay of proceedings 276 Eijtering judgment on an answer regarded as frivolO|U9, as if upon a default ;;..... >. ... 276 A motion to open a sale on the ground of surprise or mistake . . 276 A jurisdictional defect . . . . , , 276 Judgment entierfed on an ii^regular confession — a motion to va- cate is not a motion for irregularity 276 Rule, when applicable . . . ' 276 What are irregularities — what laches fatal 276 Entry of several judgment on joint indebtedness — amended after one year 276 Defects in the summons and copy paper served are irregulari- ties and must be specified 277 Objection that the return day in an order of arrest has been changed — must be specified : 277 That an execution was issued after five years without leave.'.. 277 Attachment — irregularities in order to show cause 277 Not sufficient to state it in the moving affidavits only 277 iM^st be stated in notice of motion , 277 Must be specified in the, notice of motion or order to show cause ; 277 Order not reversed' on appeal, ' because the ground of the motion was not specified in the notice 278 Appeal .^ presumption when irregularity is not mentioned..-. 278 Action of court below, not reviewable in Court, of Appeals .... 278 All objections — to be presented in one motion 278 Motion not extended beyond the Object specified 278 790' , Index to INotes. , [See index to the rules, ante, page 7Q9.] ~ MOTION AND ORDER — (Continued) : page. Laches — in moving, if atal — mo'tion to set aside for irregularitj? must be made promptly '. 278 What laches -in moving to set aside a referee's report is fatal.. 278 .Laches of the clerk" in entering orders — not to prejudice parties. 278 Objection to irregularity must be made at Special Term 278 Formal objections waived, if not taken at once , . . 279 Place of making motion — stipulation to allow a motion to be made in any county .« , 279 ' At Chambers -:- when heard only by' consent , 279 ' Motion to set aside a substituted service — where to be made. 279 Motion to consolidate actions in different districts, where made. 279 Mptions in first judicial district in actions triable therein. .. . 279 In the first district — application to vacate an attachment.... 279 In the first district, a motion in an action triable in another district is improper^ • 279 Moving papers need not show that, motion is made in the' proper county ; 279 Motion to vacate an ordef of, arrest 279 Motion to, dismiss an appeal, to be made at (General Teriu.... 279 Time of arguing motion — rights of parties in regard thereto 279 Renewal of inotion — leave necessary 280 When a motion cannot be renewed without leave of the court.. 280 Second motion without leave .„ 280 ; When leave to renew unnecessary. 280 Leave to renew — discretibnary .'. , ...,• 280 ■~ When leave to reargue will be granted j-. . .>l 280 Defective! papers -- the ground of denial of original motion .... 280 Renewal of denied motion — exception to rule : 280 Where leave to renew is granted it should be so stated in the order .....' , 281 When leave to renew is granted at time of supplication — when renewal need not be made within a year. ..'..... 281 On new facts \ ,• ■ •' 281 On different facts ! j : 281 'On newly discovered facts 281 Not granted on grounds known when the original motion was made 281 Second motion improperly granted, pending- a decision of first ' motion • ■ '■ • 281 'Not upon cumulative papers 281 When leave granfed, will not be reviewed on appeal 281 Attachment vacated on the merits — when another application i , improper ^°^ Attachment against national bank — when motion to vacate \ may be made ; ■ • -°^ t ' ' Index ' TO Notes. 791 I [See index to the rules, ante, page 709.] MOTION AND ORDER — (Continued) : Renewal of motion — -(Continued): page. Defendant not to Jae continually vexed with the same applica- , tion . . . i :..... 282 Motion denied on preliminary objection — may be renewed on ' . the raeritfe ' '. y 282 A motion to open an order and for the .relief sought may be made at the same time ■ 282 Motion to strike out an answer as ,sham, after the denial of a ■ motion for, judgrdent thereon as frivolous 282 Bail — application to allow surrender as a favor, after denial of, as matter of right. , 282 Appeal from original motion — motion to renew not precluded by . . /. , '. I : . , .' 282 ' The motion will, however, prevent the hearing of the appeal . . 282 First order a bar ....■> : . . . 282 Application to another judge 283 Motion need" not be made before the judge who decided the , former motion . '. 283 New facts justify — without leave 283 Without payment of the costs of a prior motion 283 Papers once served ruay be referred to on a subsequent motion. 283 To obtain leave .-..,. 283 Motion for leave and of renewal at same time 283 An appeal pending — not a bar '. 283 Motion to renew prevents hearing of appeal 283 Entitling motion papers — where abjection is to be taken. 283 Failure to entitle a motion for the appointment of a trustee in a separate proceeding , 283 Entitling one order in several actions ■ 283 Costs -^stay effected 'by non-payment of 284 With,drawal of motion — costs 5— when payable -. . 284 Not allowed jyhere, before the hearing, the ground of the motion is obviated 284 Where costs- are inserted in an order entered under a decision not giving them — judge cannot then give costs 284 The party who is to pay costs must seek and tender them to the other 284 Non-payment of, a stay 284 On failure to pay costs 284 A receiver may enforce by execution a judgment between other parties which requires money to be paid to him ■. 284 Condition — when and how copiplied with 28;5 Party must take notice of, and comply with order 285 Failure to perform condition, proper practice on 285 What condition , may be imposed 285 792 Index to Notes. [See index t6 the ruIeSj ante, page 709.] MOTION AND ORDER— (Continued): '- page. Reargument — application for reargument must be made before the same justice . . . ., i. . . . '. , . . 285 Motion for rehearing on the ground of misapp rehension or in- advertence before original judge .''-..:./... y. 28S Bes adjudioata — not applicable to special motions 287 A person allowed a. hearing on a motion is concluded 'by the de- cision '.,.7 287' > What will not preclude a motion to reopen default. 287 "Jurisdiction — question of jurisdiction, not' to be decided on a motion to dismiss- -the complaint , . •. 287 Service by mail — on what hour of the l^st day to be made' . . .-. . . . "287 Motion to vacate — -a judge granting an order for substituted ser- vice may .entertain a motion to vacate it. . . 287 Eoo parte order vacated on motion at Special Term 287 I Affidavit must show present conditidn of action . 287 Application denied when affida,vit insufficient . . . '. 288 Modification — an order can be modified only oii motion 288 After modification 288 Entry of order, by whom — right of unsuccessful ■ party to enter order ...'..."..'. .i ....'. 288 ' Omission to enter order — effect of — who may enter it...... 288 Review — of the decision of one Special Term by another is inj- proper . . . .-^ 288 Relief from terms iinposed must be sought from the justice im- posing them '. . : : 288 Appeal — ■■"•when it does not prejudice a motion 288 Default on motion — ■ laches in opening 288 Costs not granted when not demanded in notice 288 Enumerated . motions ' — an appeal from an order appointing sin ad- ministrator . . : ......' 290 An appeal from an order sustaining or overruling a demurrer. 290 A motion for a new trial on a case or bill of exceptions. ...... 290 A motion, for $. new trial on newlj' discovered testimony 290 'A motion to set^ aside the report of a referee on the merits.. .. 290" A motion to' Confirm referee's report on reference under inter- locutory decree ". 290 An appeal from an order of the County Court gj-anting a new trial on tjhe judge's minutes '. 290 Appeal from an order of the New York Court of Common Pleas, denying motion for nsw trial, taken independently from the judgment. ' :....... :. 290 A motion for the confirmation of the report of a referee appointed under an interlocutory jtidgment .'...: 290 Non-enumerated motions — a motion for a reference in an action .... 290 IwDEx-TO Notes. 793 [See index to tjfe rules, ante, page 709.] MOTION AND ORDER— (Continued) : Non-enumerated motions — (Continued): page. A motion to set aside a report of referees on the ground of irregu- larity , ' 290 A motion to set aside a verdict for irregular conduct of jury .... 296 A motion to bring on trial by record . . „ 290 A motion for .Judgment on the pleadings .....: j . 290 Distinction between final order and order with leave to plead over. . . 290 Motion for judgment for frivolousness is the trial of an action .... 291 Contested motions — heard only at regular. Special Terms, unless otherwise ordered ._ '. 291 Cannot bfe Jieard at a Special Term adjourned to chambers, except by consent 2^1 When a hearing is in the discretion of the court 291 When properly noticed for a Trial Term : 291 Service of papers — neglect — notice must be given of a motion to strike from the calendar 297 Failure to serve papers 297 On motion to confirm a r^eree's report, the supporting pipers should be served with the notice 297 Demurrer — papers to ' be furnished by a party demurring, to the court only 297 Motions affecting receiver. .' .'. 449 NAME — Discovery not flJlowed to ascertain names of parties. : 101 NEW TRIAL. See Case and Exceptions.- - ' . NEWSPAPER — Publication of notice of sale 378 NON-ENUMERATED MOTIONS 290 NORTHAMPTON TABLES 414 NOTICE — Of application for an order of discovery , . . 118 Of enumerated inotions. . . .' '. 146 Of a.rguinent 275 Of examination bef oyc' trial J ....... . 460 Of sale. See Judicial Sale. Of motion. iSee Motion and Order. OATH — Of attorney 36 Of referee , 181 OBJECTIONS — On trial. See Trial. OPENING AND CLOSING CASE - 168 ORDER. See Motion and Obdeb. PAPERS — Filing of : -. . 46 Failure to file 47 Leave to file at any time »•.... 48 Illegibility of '. 143 Irregularities in copies of . 147 Furnished oM enumerated motions ' 297 On demurrer 297 Ins(pection and discovery of books and ipaj)ers. See Discovery. 794 Index to Notes. [See index to the rules, ante, page 709,] PAGE. PARTIES — To a, motion for discovery , . : 115 To action of foreclosure. See Mohtoage Fobeclosubb. PARTITION — No inherent power in the court : 405 Supreme Court — jurisdiction of '. 405 Action of partition to try title — allegations as to adverse title . . 405 .Specific liens on undivided' shares should be determined by the in- ' terlocutory judgment 405 No exceptions need be filed to the referee's 'report , . . 405 , ' Lien upon premises partitioned — how asserted 405 Co-tenant out of possession may maintain partition 405 • , Consolidation of actions for partition a 40ft When a sale, instead of actual partition, will be ordered. ...... 406 Issues tried in a partition suit — exceptions, where considered . . 406 Issues tried by a; jury — motion for a new trial under section 1544 of Code of Civil Procedure, improper ; 406 The interlocutory judgment Would provide for existing liens. .. . 406 ' Oder confirming sale cures all prior irregularities 406- Jurisdiction confined to propei-ty tfescribed in -complaint 407 Proceeds of sale ^-~ when feal estate 407 Allegation as to other lands : — omission to kllegs that the parties own no other' land in common 407 Motion to include other lands — bill of particulars thereof — plain; tiff required to pay costs • 407 Dismissal of the complaint in partition 407 Abstract of title — to be produced on reference 408 ' 'Need not be annexed to report ., 40S Referee — report of — ■ how corrected 408 Power of, as to incumbraiices 408 Eeport a? to whether an actual partition can be had 408 PAYMENT ^- Chancery' rule — • investment 411 Payment to a, referee : 411 Officer protected in paying 411 Payment into court ; 411 Proper , practice thereon 411 , Northampton tables — use of,/ in action to recover damages for death. 414 To estimate the value 6f a husband's life .^ . . 414 Carlisle table of mortality 414 Contingent dower right — rule for computation of 414 Gross sum in lieu of a life estate — discretionary with the court. 414 Gross sum not awarded for an inchoate right of dower 414 WKen moneys representing an inchoate right of dower will not be paid to the husband 414 PHYSICAL EXAMINATION — Before trial 119, 458 PLACE — Of trial. See Venue. "if/''' • ' ' ' ' " ' Index, TO NoTJr.s. T.93 \ [Sefe index to tlie rulesr, ante, page 709.J , ' 1 , ' PAGE. PLEADING — Irrelevant matter — ■ power of the court to strike out .... 148 'Facts alleged in support of a d&ial, not stricken out 149 When an answer ia not frivolous J. 149 Irrelevant matter — argument as to. : , .' . 149 .What is irrelevant matter ; . . . .- ; 149 What is not. ...... .'; 149 An answer cannot be considered frivolous unless bad as a whole. 149 ^ What irrelevant matter, .comprehends. -. 149 . » Not favored by the courts , . 150 If in any view relevant, it should not be stricken out , 150 , The irrelevancy must appear on the face of the 'pleading.,:,.. 150 The matter must be clearly irrelevant , ■. V. . . 150 If not, the remedy is by demurrer . ,. 150 ' ■ ■ When the remedy as by demun-er or motion on the trial ,-. . . 150 The entire pleading will not bs stricken out 151 In part relevant r/.i '..'.. 151 .' ' ' '^'v ■ '■'''.'■ 'A''''t -A P^i't of a pleading, in tort, the. rest being on contract, stricken ; ;■ ' out , .' 151 When answer allowed to staiid '. 151 Unneaessarily elaborate statements, not stricken out 151 In equitji' actions ' ; 151 What paper* should be served ' 151 Denial of motion to strike out allegations as to u deceased de- fendant ,,, J . ., 151 Matter not stricken out because inconsisten't . '._ . ..... ...i 151 Laches in an application to strike out inconsistent defenses.... 151 The validity of a defense not determined on motion > 152 Nor the sufficiency of a, pleading 152_ To strike out, redundant matter 152 Scandalous matter — striking it out is discretionary . 152 Plaintiff's attorney may move. . 152 "■ Motion to make definite and certain — insufficiency mu.st clearly appear 152 When it will be grailted .,......',;- ,. 152 When it will be denied ■...,.... .,\ t . 152' When not indefinite •■ . . I'i '• 152 Reference to ascertain facts — when improper '. . . . 152 Kffect of other sufficient allegations 153 ISIotion denied where the moving party had as definite knowledge as tlie other party ; 153 Separation of canses of action, granted on motion 153 Fraudulent acts — surplusage ;........,. 153 As to a counterclaim, -when denied. ..'...' 153 Plaintiff not required to elect to charge frfiud or mistake , 153 T96 Index to Notes. [See index to the rules,' ante, page 709.] i-LEADING— (Continued) : Motion to make definite and certain — (Continued) : page. Motion to make a complaint definite, etc., not granted after answer , 153 Definite lines of work not required to be specified 153 V Allegations as to knowledge of fraud which are not obscure 153. Name of person to whom information was given, not required. . 154 Requiring a statement whether the defendant is charged person- ally or oflflcially 154 Requiring a definite description of the premises in question 154 Action for a failure to procure insurance .:..'.;"..■. 154 Denials upon information — *hen insufficient 154 I What is not an excuse for an insufficient pleading 154 Denials not required to be made more definite by adding other matter . . . i 155 Defendant not required to be more definite than, plaintiff has , been 155 Motion is proper remedy v ^ . . . .~ 155 Dismissal not proper remedy 155 Affidavit improper '. 155 .Time — of making niotion, to- strike out irrelevant matter 155 Within what time 155 Insufficient time ; .^. 156 Not at earliest possible moment ~: 156 Within twenty days from the service of an amended pleading..'... 156 Before the cause has been noticed for trial 156 1 , Motion to strike out cannot be made at the trial 156 Time when paper served by mail , 156 Waiver of right to have irrelevant matter ejfpunged — service of an answer 156 Extension of time to answer . .' 156 Stipulation, when not a waiver 156 What is not a waiver of a 'f ailiu'e to serve notice in time 156 Notice ■ — contents of '. 156 Defects must be specified in motion papers 157 _ Irrelevant matter stricken out on mention for frivolousness 157 Res <^djudwata — ■ Denial to one defend'aiit, not a. bar to the applica- tion of another defendant . , i ........ . 157 Discretionary — appeal to discretion, after denial as a right 157 The striking out of irrelevant and redundant allegations is dis- cretionary , 157 Appeal — ' lies from an 'order denying a motion to have a complaint made more defihite and certain 157 Appeal from order striking out irrelevant matter — the com- plaint adjudged bad on demurrer 157 ■ Index to Notes. 797 ■ [See index to the rules, ante, page 709.] tLEADING— (Continued): page. Stay — stay of proceedings to make a pleading more definite pending an eippeal . .:. ,. , ;....'...; 157 In what case it may jbe granted: ' 157 Affidavit necessary — for an order extending the time to answer. . . . 160 Demurrer — after an order extending the time to answer is irregular. 160 Striking out — a pleading — motion for, by what extension author- ized .' 160 ' , Additional tinie — when it commences to run 160 Seven" days' time — when it couHnences to run. 160 Mailing of order on thp last day, sufficient 161 When rule does not' apply , 161 Waiver — of right to have the complaint a^nended 161 Laches — of. court — party not injured by 161 Of attorney ." ; . . 161 Time — Statutory Construction Law ^ computation of time 161 ' Computation of time 161 Fractions of a day. 161 A week ' .'. 161 "Month" and "day" defined , '. . . 161 Ordier extendling time ffl^y be ex parte — when properly granted. l6ll Alfegation as to other lands, in partition 407 POINTS — On appeal , 302 PRACTICE- In cases not provided for. ,' 9 PREFERRED CAUSES 293 PRINCIPAL AND AGENT — Inspection of the books of an agent.'. 117 PRINCIPAL AND SURETY. See Undertaking. - ' PROCEDURE — Power inherent in court , 8 On application for discovery i98 PROCESS — Receipt for process 60 Delivery to deputy^ — liability of sheriff 60 Delivery of process must be knowii to him. 60 • ' , .Delivery to a person in charge of the business in the office of the coroner — when sufficient 61 Return — process may be returned' on the morning of tl^e return day. 61 Sheriff to serve and return a declaration within a reasonable tiine ,' : . . 61 An officer is bound to use diligence in executing process 61 Shferiff to return writ without an order of the court/.- 61 Effect on a return of a reversal of the order requiring it to be made • '. . .' 61 Demand for return not 'necessary before suit 61 .Attachment to compel — an action may be brought 61 Damages for a failure to make — proof of . . : 61 Return by the deputy, as to the amount collected on an execu- tion, conclusive on the sheriff ; 62 798 Index to Notes. [See indQX to the rules, ante, page T09.] .PROCESS— (Continued) : Return — (Continued) : page. Return of an execution, after action commenced — damages — effect of return nulla bona 62 Effect of return of " not found" on ithe bail — their rights if' the return is false.' 62 Return of "discliai'ged on bail " — when made by new sheriff. . . 62 Sheriff, after expiration of his term, may complete execution of . a fi. fa ; . 62 Correction of return — after an action for a false return has been oohimenced ....... L '. 62 A corrected returp may be read in evidence with the same effect as if originally ^o made^. .'.... y''" 62 .Omission of the sheriff to indorse the proper' return on a,n execu- tion — amendable nunc, pro tunc 62 Ex;cus© for not returning — permission 63 ■Waiver of right of action' for non-return ........."•. 63 Plaintiff in exe'cution, whrai not liable for instruction to sheriff. 63 Fees .— non-payment of ' '. ■ 63 Stay of proceedings . . . |. ; . . . , 63 'Submission to arbitration after judgment — ■ sheriff , eanriot set it up as an excuse for not returning an execution , 63 .Sheriff is bound to levy under an execution regular on its face. . 61 'Not liable/ if the execution was void 61 Not excused for aji escape by showing that the execution was irregular , 61 Irregularity in issue of writ — sheriff ,oannot take- advantage of . . 61 Presumption — that the sheiriff began execution of a writ within, its lifetime '. 63 Proof of service — sheriff's certiftcate of service, out of iia county. , . . 125 When a sheriff.'s certificate is insufficient evidence' of service. . . . 125 Return of, sheriff — conclusive, though service was made by one not a. deputy 125 Clerical error in sheriff's certificate — disregarded 125 Positive affidavit of service — when it prevails over defendant's denial ,...:. i i 125 Service presumptively esta;blished by the judgment record 126' Plaintiff — ; how concluded as to the date of service of a summons. . 126 Defendant may controvert the certificate, or affidavit of service. . 126 Omission Ito state affiant's age in affidavit of service, where affiant is an attorney-at-law. '. 126 Judicial notice of attorney's age — irregulai'i ties. Hot fatal 126 Must show that person serviiig knew defendant 126 Service — bow made — a constable may serve a process in his own favor 127 Index to Notes. , 799 [See index to the rules, ante, page 709.] PROCESS — ■ ( Continued ) : Service — (Continued): . page. A. sheriflf may serve liis own process : . . . . 127 In Justice's Court a plaintiff may not serve his ovm summons . . 127 Service by a party is a mea-e irregularity 127 In a special proceeding '.>.';.■...'.: 127 Plaintiff may prove an admission of service....:. ,.,/... 127 Service, must be directly on , the party 12i7 Receiving back a summons makes the delivery insufficient 127 iServioe on a, corporation at common law 127 Service of a summons upon one with whom a lunatic resides is , insufficient , ; 127 Service on a convict in State's prison is good 127, i . In action against a sheriff for an escape it may be served on the under sheriff . : ,. •. 127 Service in an action under chapter 185 of 1857 128 Placing the summons on defendant's shoulder, sufficient. 128 Throwing the paper near the defendant 128 What constitutes leaving process in hands of person served .... 1^8 Depositing papers in a chair not a good service 128 Service by violence bad — how made on a, party who refuses to receive the papers . ; . i j .... I 128 Madfe by a, private person, who wrongfully enters the house of the person served : 128 Serving a, summons concealed in an envelope — not good 128 Jurisdiction — court has no jurisdiction where a. Summons is not legally served 129 servic^ of summons the only way of bringing a party into <;ourt ' against his will '. 129 Service of summons on holidays mentioned in chapter 30 of 1881 129 SArviceof a summi6ns on an election day m void 129 As to charter elections '. 129 Admission of service by a party out of the State will not sustain proceedings in personam 129 Personal service out of the State — effect of 129 Joint debtors — ^ one not within the jurisdiction of the court. . . . 129 Admission — of service signed by a party (not an attorney) must be a,eknowledged or proved : 129 Appearance — voluntary appearance and appointment of a guardian,/ I for an infant, good 129 What answer waives a defect of jurisdiction over the person.. 130 • Service of process upon a ndn-resident voluntarily submittihg himself to the jurisdiction of the court — when set aside. ..„ 130 What answer is not a waiver of a want of jurisdiction over the person . . ., , 130 What is not a voluntary appearance 130 "51 • • • : ' ■■'' 800 Index to ]!^otes. ' [See index to the rules, anie, page 709.] PROCESS— (Continued): page. Irregular service — a summons cannot issue for an infant plaintiff until the appointment of a guardian ad litem - ■. . . 130 Otherwise the service of the summons will be irregular 130 Service by a party a, mere irregularity. . . . , 130 Irregularity must be taken advantage of, by motion 130 , Privilege of witness muslt .be asserted at the first opportunity. . . 130 Objection that a sheriil did not make service — when to be taken. 131 Suit not regularly commenced — the remedy is by motion 131 A pretended service, avoided by motion 131 Objection to service of summons cannot be taken by answer or dettmrrer , ' 131 Irregular service' cannot be set up in the pleadings 131 Where defendant has attempted to evade service, what evidences o-f nonservice will be required before the judgment will be Vacated . . ' : 131 Service set aside where the defendant was induced to come into the State by a trick ^^ • • - • 131 Service on one inveigled into the State set aside 131 ^et aside wh«n the defendant was induced to come into the State for the purpose of procuring his arrest — action not dismissed . . . ; , 132 What acts, inducing one to come within the jurisdiction of the court, constitute deceit ' ■ '. . . . 132 Witness invited to.attetad a settlement, protected 132 The witness must have come into tlie State Voluntarily. . . ... . . 132 It must appear where the witness came from 132" Service on a witness before. a legislative committee, set aside.. 132 Servite on a ■ nonresident witness claiming to- be a ci ti:?en of New'York . . . . 132 Service oh' nonresident attending as a witness in this State is bad ■ , 133 Attending trial_at a circuit out of his county ' , 133 , Service upon a witness in a cause in the United States court.. 133 The court. has inherent power to. prevent service on its officers.. 133 Laches — what laches precludes the defendant from moviiig to ■sat aside a judgment for nonservice 133 Substituted service — an order therefor is not an order granting a provisional remedy 133 Act applies to infants . 133 Order for 133 iSufficiency of an affidavit to obtain the order 133 ■Service on hjuabandi for wife — when service in foreclosure on u Ims- band is good service on his Avife 134 In 'foreclosure suits service on tlie husband when good service on the wife^ 134 Index to jSTotes. 803. [See inilex to the rules, ante, page 709.] PROCESS — (Continued) : Service on husband for wife — (Continued): page. Service of subpoena-in 1838 upon a husband to give to his infant ' wife constituted good service upon the wife 134 Service on conporations ; — on a domestic coriporation 'l34 Service on. managing agent 134 Who is a managing agent 135 A general agent is a " managing agent " of a' foreign corporatiojl. 135 A general superintendent of a domestic telegraph company is . . 135 A general superintertdent is 135 Who is a, managing agent of an insurance company 135 A superintendent controlled by the home office 135 " Representative," when not a managing agent 136 A ticket seller is not ....>> 13i6 A baggage mas)«r is not ^. . 136 Service on a telegraph operator, insufficient 136 Service made on an employee, insufficient 136 A superintendent of soliciting agents is not a managing agentv. 136 Kelation of an attorney not that_of an agent 136 Form of affidavit of service • 137 Who are officers de facto of a religious corporation, on whom ■ service may be ■ made 137 Service on railroad corporations 137 On express companies 137 , On a board of supervisors 137 On foreign corporations' 137 ■Foreign insurance company, before doing business in this State. 137 Life or casualty insurance corporation upon the co-operative or asses.9ment plan 137 Designation of person upon whom to serve a summons 137 Irregular designation of a person on whom process may be served. 137 , -Service on the insurance 'superintendent, for a. company not ad- mitted to do business in the State 138 Ah admission of service by the superintendent of the insurance department is sufficient 138 Clerk appbinted by the superintendent of a foreign 'fire insurance company to take service 138 Statutory method of service on superintendent of insurance de- partment does not preclude other methods 138 ■ . In default ot- designation, service on the counsel of a foreign corporation is good 139 'V ' , Service, how made on a foreign fire insurance company 139 Served on " managing agent " 139 On the secretary of a, foreign corporation . .' r 139 On the cashier 139 8'02 , Index to Notes. 1 [See index to the rules, arete, page 709.] PROCESS — (Continued) : Service on corporations -7- (Continued) : page. On a director in an action under chap, 185 of 1867 139 On a, nonresident director of ' 139 Upon a foreign corporation, by serving its president temporarily in this State not on business of the corporation 140 On » corporation under the statute 140 ■ , On a president after he has resigned 140 On a, director who claimed to have resigned ■-. . . 140 J On a director who had resigned, thougli this reduces the nurnber ibelow the legal minimum 140 " On a de focio president of a corporation pursuant to stipulation. 140 On an oflSiOer of a corporation wjio had surrendered bis stock. . . . 140 On the cashier of a bank whose charter , has expired 140 On the grand forem,an of the A. O. U. W. is'good 140 Property of the corporation within this State is essemtial to an order for publication. , 141 Service on a resident director of a foreign corporation — wh6n bad ,'. 141 No personal judgiment against su foreign corporation — when. . . . 141 What must be shown by a corporation seeking to set aside a sei-vice on its alleged agent '....» 141 Temporary receiver of a foreign corporation appointed under serv- ice on a managing agent 141. Greneral manager \ ..... .' 141 Attachment^ — where levy has been made the suit will be upheld, tlubugh no summons has been served. . .• ,'.; 141 Affidavit- need not show that an action has been''begun: 141 When attachment ' and levy not sustained because of nonservice ' of the summons On the defendant, who has died 142 Judgment — what is a sufficient service upon a corporation to support a judgment 142 Delivery to deputy shei^ifr — is good service on tlie sheriff 142 Purchase of land sold under a void process. 395 PKOOF — Of service. See Pbocess. PUBLICATION — Of rules 10 Of uo'tice of sale ; 378 REAL PROPERTY — Power of the court to direct" .sale of infant's realty. 348 Publication of notice of sale. ; .• 37S Sale — judicial sale of real property 379 Inverse order of alienation , 380 Notice — of dtefect in judicial sale 3S1 Resale of ■ 382 Proceeds of sale, in partition — when real estate .,.;..... 407 1 . 'Computation of value of contingent dower right r. . . . 414 '« Index ' to ISTotes. ,' , 803 [See index to the rules, ant^, page 709.] REAL PROPERTY— (Continued) : page. , Effect of ddir^ro© on dower '. •. ' . . 427 Sale of infant's real property. See Infant. See MORTjJAGE Fobeolosuee; Pabtition. REARGUMENT — Of motions and appeals 285 RECEIVER — Of rents and profits -- in foreclosure 371 General provisions -^ a receiver is ah oiBcer' of the court 434 He must obey the orders of the court 434 The monej- in his hands is held in custodm Idgts for whoever, may prove title to it ,■•••,■■ '. ■ 434 Receivers of insolvent corporations -- rights of 434 Liability of receiver 434 Appointment of a new receiver, in case of the death of the debtor and first receiver 434 Motion to compel a receiver to sue ,: . . . 434 Application lor leave to bring an action in the name of a receiver in supplementary , proceedings 434 Clerk of J;he court only appointed receiver by consent 434 Limit of a receiver's recovery 434 ' Appointment cannot be attacked collaterally 434 Appointed in an action to set aside fraudulent conveyances .... 434 Eight to bring action 435 No extra-territorial power 435 Cannot sue in foreign jurisdiction 435 Payment of claims 435 Prosecuting action 435 Accounting 435 , Foreign receiver cannot maintain action lor appointment of ancillary recetver 435 Action in the name of the corporation 435 When entitled to affirmative judgment .' 435 Appointment of a receiver is no bar to an action against the cor- poration . . 435 Rights of aejiion in a receiver, as regards fraudulent convey- ances by his debtor 436 Action by temporary receiver of an insolvent corporation to recover moijieys obtained under au unlawful preference. .■ 436 May select the court -' 436 Suit by a particular attorney 436 When authorized, is bound to bring suit — should not be re- strained .' 436 Leave to sue improvidently granted 436 Should not sue without authority of court '. . 436 Authority to defend an action must be given by the court itself. 436 Receiver of a, bank may siie its directors for gToss negligence: . 436 Order directing receiver of a bank to sue the directors will not .be reversed on an appeal by the directors ! 437 804 Index to ITotes. [See index to the I'ules, ante, page 709.] RECEIVER— (Continued): " page. Costs — incurred by a trustee .".... 437 A receiver who has prosecuted an action in good faith is entitled to costs , ' ■....../ 437 If leave not granted, personally liable for costs 437 ^^^ant of funds to pay Costs — evidence of bad faith in bringing action 437 Not sufficient ground to- compel payment of costs personally.. 437 V Assignee in bankruptcy — liable for costs ' ' 437 Personal liability for costs incm-red by his unnecessary defense t — notice '. 437 Costs not personally charged against, vpithout ' special order 438 Order for payment of costs out of fund 438 Liability where he continues an action 438 A receiver cannot enforce trust resulting to creditors, where the debtor pays for land conveyed to another 438 Two receivers — of the same property, not appointed 438 Second receiver may be appointed -i > 438 Seco^id receiver in foreclosures ' . . . 438 Reference as to claims — may be without his consent 438 Enforcement of claims against a receiver 439 Funds in a receiver's hands — paid out on motion. . .^ 439 Receiver, after order for publication of the summons — appointed without notice • 439 Relative rights of a prior mortgagee and a receiver appointed with- out notice for a junior mortgagee . « 1? 439 Receiver in supplementary proceedings — appointed only on notrce. 439 The title to a judgment-debtor's real estate vests by operation of law in a recejver appointed in supplementary proceedings. 439 Such receiver should not determine adverse claims 439 Both debtor and creditor are represented by •..-/., 439 He takes title only to real estate in this State ......'... 439 His title is superior to that of a Ijona fide assignee, after the filing of the order 440 When not appointed 440 Tlie order, made without, notice, cannot be questioned collater- ally ■ : 440 Notice to the attorney of record of the debtor, insufficient 440 Where tlie order appointing a receiver in supplementary proceed- ings is to be filed 440 Hi.s title is a qualified one 440 Of rents and profits, has no power to pay for repairs 440 A receiver held liable for rent, when . . . . ^ 440 Where in an action to set aside a conveyance in fraud of creditors, the ri'ceivpr cannot I'ecover ri^nts and profits 441 Equitable interests pass to .i receiver 441 Index to Nqtes. 805 [See- index to the rules, a»«e, page 709.] , RECEIVER— (Continued): • ' page. Tlie court ui^y' forbid interference witli tlie property in the receiver's , hands , . „ , . . . . 441 Motion to determine right to funds — in what district to be made, 441 , Teinporary receiver — of a ' partnership, right of 441 Powers of a temporary receiver j 441 How far the title to corporate property vests in him 44:2 What must be proved i before appointment 441 Not for purpose of ousting a partner from manageinent. 441 In foreclosure proceedings 442 Ancillary receiver 442 Receiver's title to property 442 ■'Failure to file bond 442 - Commissions of ' 442 Instructions — a receiver is entitled to : 442 Application by a party not interested, disregarded 442 ^ Cdntempt — to sue a receiver without leave. 442' Action brought without leave -=-, good until the court interferes.. 442 The court has jurisdiction although the suit is without leave .... 442 ; ^ • Interference with a receiver in collecting rents is a contempt... . . 443 Refusal of adjudgment debtor to deliver goods". . . . v , . . . . 443 Interference Avith ■ the receiver's possessioij. .......' 443 Failure to pay to a receiver as directed, money deposited in the name of the debtor's wife . , ' 443 When a failure to appear on an adjourned, day is not a contempt 443 A receiver's right of action — dependent on the filing of his bond .... 443 Corporations ^-receivers of 443 A -receiver not appointed unless a clear necessity be shown 443 limitation on the power to appoint a receiver of a corporation . . 443 Default in interest justifies a receivership 444 Formerly the title to corporate property did not vest in a tem- porary receiver .''... i. . , 444 How far the title to corporate property now vests in him 444 To what property_ the receiver takes title ,.. . .,'. . . 444 How far his appointment dates back V. . . . . 444 \ Property transferred to a receiver 444 Relative rights of a sequestration and mortgage foreclosure re- , ceiver in future earnings 444 By what act a receiver does not make himself a party to an action' against the corporation ' 444 Not inade a party after his final discharge 445 Not a necessary party to foreclosure '■ '.s ■ • ■■■ • ■ '^'^^ Receiver's certificates, issuing of ■ . . V.^. .... 44,5 . Enforcible only in the court directing their issue^. 44.') 'Eflect of a receiver's certificate on a prior njortgage lien 445 Authority to issue certificates of indebtedness. . . ,. 445 806 IlCI>EX TO NoTFjS. [See index to the rules, ante, page 709.] RECEIVER — (Continued!) : • ^ •, Corporations — (Continued): ' page. A judgment should be, entered against him as receiver and not personally — when it may be so entered after he has been discharged as a receiver , 445 Receivers of a corporation — in what district the application for the apbointment must be made , 445 Act of 1897 limiting to receivers the right to enforce the lia- bility of stockholders ' in a bank 445 Receiver of foreign corporations , , 446 Power of the courts of the State of New York 446 Domestic creditors only represented 446 Where a receiver of a foreign corporation will be appointed. . . . 446 A receiver of a national bank, not a foreign receiver., ......... 446 Receiver of insolvent insurance corporations '. 446 Advances by a receiver to a corporation , . 446 ILoan to a receiver of a corporation whose appointment was void . 446 Appointment iby a final judgment supersedes a prior appointment of a temporary receiver in another action. . . . , , 447 Receiver's disbursements in preserving property 447 Preferential payment, when not, proper for supplies 447 A receiver may assert the unconstitutionality of a statute of lim- itations, . . . 447 When court will appbint receivers of corporations 447 Duty of court T 447 Deputy attorney-general as receiver 447 Foreign corporation " 447 , Receiver pendente lite 448 In action for sequestration of property of domestic corpora- tion ' 448 Misconduct of officers .....'.... ^. .. . 448 Commissions — by what statute governed ' -. . . . . 448 Determined by the law in force at the time of the appointment of the receiver 448 Commissions of a temporary receiver- — by what act governed and on what computed 448 Receiver's commissions — amount thereof 448 Allowance, increase of, when less than $100' 448 Motions affecting receivers — sequestration of the property of a corporation, appointment of a receiver 449 ; Service of papers on Attorney-General 449 Receiver — notice of motion for his appointment 449 Title to real estate 451 Attorney — employment of, by receiver 45'! Who should not be employed '. . 452 Employment of a receiver's piirtner 452 Indtjx to !N"otes. 807 [See index to the rules, ante, page 709,.] , ' I^pieiVER — (Continued) : Attorney — (Continued) : . ' /; . page. ; Commission to take' testimony — the, rule is not applicahle to.. 45f2 A stranger cann,ot object , . . . 452 Compensation of .' 452 KECORD ^ Destruction of records ,. . , .1 ...:■.:.. . 49 Business hours of county clerks C6 Entry of judgment . . . 66 Of judgmenits f. . . 66 Affecting judicial sales ■ • • •, 393 Of mortgages and assignnients , thereof. See Mobtgase Foke-' CWSUEE. ' ^ , REFERENCE — ^ Power to compel inspection not delegated to a referee.. 101 Residence of referee — vfheve the referee- may sit 176 To take an account and report, also to decide certain , questions . 176 Power of the legislature to authorize it 176 ,New_ referees — of claim against estate . ...;.;. 176 ■ Books not required to be left with the referee .......' 176 Order of reference of action made on pracl^ice motion ...'.. 176,_ Form of order of reference to settle issues of fact preparatory to taking testimony 176 Qualification of referee '. "■: 450 Referee disqualified —r- by reason of having acted in a former action between the same parties 177 When a referee's report will be set aside because of bi'as and, prejudice .;........; , 177 Misconduct of referee — disqualifying him to settle the case on .appeal .{.-' 177 When waiver is final 178 Report — when judgment is entered without authority, and when it is void for error of referee 178 Testimony accompanying the report, if not in full, should present the substance of what is material ,,. . . ,. 178 Referee's report, on reference to state an account IT" Finding of fact, included in conclusions of law , 178 Finding inconsistent with the pleading^ and the evidence — when judgment set aside because of. ....... 178 ' What findings required ,.^,.,f; . , . . 179 ' '. Omission to state a neoesskry conclusion of law. ...'...' A' ;ii-jj-;.'. . 179- Finding that evidence "leaves the mind in doubt" 170 ! Reference to determine issues in aii accounting IT^ When findings necessary 170 Report, not excepted to, may be canceled. . . . : ■. . . 1 Trt ' . ; Ambiguous findings — so construed as to sustain judgment.-..-. 17fl Upon order entered upon remittitur of Court of Appeals 17;t Filing of report terminates action, 179 \ , &08 ,' "ir ■ >■ Index to JTotes. -- ' [See index to .the rules, ante, page 709.] REFERENCE— (Continued): * "V. Report' — (Continued): ^ - page. • Report cannot be filed after death of referee 17!) 6n the trial of a demurrer or on a nonsuit. 179 ' On the trial of an issue of fact 179 When thSre are several referees a majority may sign the report. 179 ' Confirmation of report — report- of deficiency on foreclosure —^ need not be confirmed — 'further judgment .T ."..... 179 Report of sale in foreclosure — how far confirmation is_ necessary. 180 Surplus money proceedings ^-, notice to all claimsunts necessary.. 180 ■When the report becomes absolute. .'. ' 180 If exceptions be not filed '. 180 Findings of referee not conclusive on the court 180 Questions presented b.y an appeal'. 180 Ex parte oomfirmation improper T 180 Notice of a motion to confirm report — when premature 180 Where made in the first department ^ 181 How terminated '. 181 > Failure of a referee to file his report — what excuses 181 ^- What is a sufficient delivery of a referee's report. . . .• , 181 When notice to terminate the reference is ineffectual 181 Filing of report ends reference ' 1-81 Findings .^. ' .' 181 Referee to 'be sworn — not in a foreclosure action. . 181 ' In. the case of infants '. ISl The omission to take the oath is a mere irregulajrity — proceed-' ing In the cause is a waiver of it ! -^ ;. 182 Rule is not chaniged bj^ section 1016 of the Code of Civil Pro- cedure, except where there are infants or parties not repre- . sented i ' IS'2 Neglect — how cured 1S2 Fees of. referee — paid by receiver out of fund 182 Stipulated sura "for every hearing" — meaning of 182 Stipulation that a referee fix his own fees is not sufficient 182 Several actions : 182 Referee may insjst that his fees be paid before delivery of report. 182 Fees may be recovered by referee, though report was not file(i in sixty days 1S2 Presumption on appeal, as to the number of days employed. . . . 182 Stenographer's fees , . . 182 Signing testimony — ■ the remedy for the failure of a witness to sign * the testimony is by motion . j... .,.• ■ , 183 ' Filing testimony — testimony must be filed with the report........ 183 Chancery practice — review under ,"'. . 183 Attorney's lien — reference to report on 183 Index to Notes. 809 [See index to tlie rules, ante, page 709.J ' KEt-ERENCE— (Continued) : page. Injunction — order confirming report of referee as to damages from , injunction — not to provide for their payment 183 Waiver — proceeding with reference^ a waiver of what '. 1,83 Insanity of referee , ^ . , / ■ ......,..,■;.. 183, Pirst district — procedure in the first "district as to tlie filingot re- ports, except on reference of the issues. . . . j' 183 ■ In the first district a motion to confirm a report, ut what . Special Term to be made : .'. .,.■., ,.. 1,S4 . . Powers of referee V. . . 184 Removal of referee ^ 184 ^ Additional allowance in actions tried before a referee. 310 In foreclosure . . . . : 361 Wliat notary cannot be referee to sell.....^ t *.'.;. 39.5 - ■■..Pjroceedings on reference in surplus money proceed,ings . . . 402 To take proof of title in partition . . . . -. 408 In matrimonial actions , !' . . ' 422 ' REGISTRATION — Of attorneys ..L, , . . , 36 RENEWAL OF MOTION. ''See .MoTiox a>d Order. - , Report — Of referee ..:......,;■.." 178 'Confirmation of :' 17!) Of. referee in foreclosure ,,.!,... •. .. 364 resettlement — Of case on appeal '. , . . , . . . . .'!'.-. , . . . . 22.S return — Of process ' .". ...'. i;' .' .':,.;. 61 ■ Correction of ., ■ ," . f. , . 62 Excuse for not making ■'■■.... , . . . . 63 Of J)apers, for irregularity :...... 147 RULES — Adoption, revi,sion and general construction of rules 7 General Rules of Practice — what they may prescribe . ••..'.. 7 They ' are applicable to special proceedings . . . ; 8 Power of eonventi<)ti — ^it may alter the previous practice. . S No law-making power is delegated to the convention..,.'....... 8 It cannot make a rule inconsistent Avith the Code.'. '; ... 8, It cannot alter a statutory provision 8 Power of the courts — matters of practice in the first instance rest in the discretion of the court .' 8 They ultimately become governed by the custom of the court. . 8 The several judicial districts have no power to make general rules ". ;. ''8 Inherent power of procedure — the court may adopt whatever pro- ceeding is essential to enable it to exercise its functions , . : 8 Jurisdiction conferred by the Constitution — constitutional power of the Supreme. Court cannot be limited by the Legislature S POrmation of the Appellate Division .;..., 9 .Cases not provided for — ^ the practice. of the King's Bench governs.. 9 ' . ' ■ . 'I 810 Index to ISTotes. [See index to the rules, ante, page 709.] RULES— (Continued): - page. Pre-existing practice — wlien not deemed abrogated by a rule con- taining no saving clause - T. 9 General rules followed by the Court of Appeals — exceptions , !) Effect of rules is that of statutes '.'. 9 Disregarding rules — > when court may disregard its rules 9 By what, court construed — Court of Appeals will not review a de- cision of the Supreme Court in reference to on£ of its rules, .v-' 10 . Bach court is the best judge of its own rules. .10 Construction of amendments to rules analogous to that of amend- ment of statutes , 10 Construction given to statutes by rules — -publication of rules 10 Rules of the City Court of New York . . .' 10 For the adniission' of attorneys .' . ,34 Further rules by 'courts 460 SALE — Of real estate of infant or incomp.etent. SeeJNFANT; Judicial Sale; Heal PROPnaiTT. SCiANDALO'US MATTER — Motion to strike out -. . . 152 SEPARATION. See Husbaki) and Wife. SEQUESTRATION — Of corporate property — how far the title to real ■ estate vests in the corporation i 4.51 {SERVICE — Of order of discovery ' '. 114 Of notice of motion. See Motion and Osdeb. Of process. Se6 Pbooess. SETTLEMEIJT — Of case and exceptions 221 SHERIFF — Cannot become bail .' - , 59 Receipts for process ,. ; 60 Delivery to deputy, ..ii//: ■ ■ 60 JReturn *of procsss . , T , . . \'.J'„',. ... .' . 61 Correction of .retui-n , , ..!... 6^2 ' Excuse for not returning. . . '. 63 Presumption that writ was executed during its lifetime 63 SOCAGE — Guardian in. See GtrAEDiAN and Waed. ' SPECIAL PROCEEDING — Entry of judgment in 166 STATUTE — Construction given to, by rules 10 STATUTE OF LIMITATIONS — In relation to foreclosure actions..... 361 STAY OF PROCEEDINGS — Pending appeal from order making plead- ing more definite and certain or strikingi out a portion thereof.... 157 Stay generally — Rule 37 applies only to Trial Terms 270 ^ Successive orders staying more than twenty days — imprc^ef . . 273 An order extending the time to answer is not a stay of pro- ceedings '. 273 Nor is" an extension of time to make a case and exceptions 273 Nor is a motion for a new trial I 273 Undertaking on appeal from an order denying a motion for a new trial will not stay proceedings under the judgment ?73 ' Index to Notes. 811 [See index to the rules, ante, page 709.] : STAY OF''PROCE£DINGS— (Coutinucd): , Stay- generally — (Continued): page. Order panting stay in foreclosure, without requiring security, reversed 274 ■\^^len granted, in order to allow a party to move for a special ( V jury.. ... ' ' ' 274 Non-payment of costs of motion* an ahsolute stay . , 274 No presumption that the costs of a motion are paid 274 Stay for , non-payment of costs waived by notice of trial 274 Effect of a stay of proceedings until payment of costs 274 Relief for refusal by Trial Term to strike case from calendar ia not by appeal '. . 274 Stay of trial at Special Term within the rule 274 Terms upon granting a stay. . . . 275 Pending an appeal. ., ;...;:.' 275 . Whea it ceases to operate 275 ' When it is not terminated bj^ the decision . . . . 275 When a decision terminates the stay, before service of the order. 275 In partition or foreclosure — order returnaf)le in less than two days . — irregular 409 By a party not in possessioij nor adjudged liable for a deficiency . 409 Foreclosure sale of an undivided interest ^- when npt stayed .... 409 Sale not stayed to await the determination of condemnation pro- ceedings ^ 409 When a stay may be granted by a judge out of court 409 Undertaking conditioned against waste — when effective as a ' stay L:- ' 410 STENOGRAPHER'S MINUTES , . , 2.54 STIPULATION— Verbal stipulation — in court ,..'....;. 91 Before referee .". 92 Out of court — ■ void . '. . .' 92 Agreement to settle ' 92 Agfeenjfent to waive irregularitiea 92 To -postpone a trial or notify counsel for a criminal 92 As to matters collateral to the action 92 :, ^ As to disbursements. 92 Effectual by estoppel — when party has been misled,. 92 Aypidance of, on the ground of fraud 92 When relieved against by the court 92 When the court may set it ftside 92 ■ Efficiency of — 'en&rcement of a stipulation that a decision shall be final ...:. '. . 93 ■ Stipulation as a cause of action 93 Judgment" modified under a stipulation — effect on, of an appeal ■ and reversal of .the judgment i . . . . 93 Use of stijpulation upon sefcond trial ,■ • • '93 812 Index to Notes. • [See iudex to the rules, aiiie, page 709.] STIPULATION — (Coiitiiiued) : Efficiency ol — (Continued) : • page. Power of 'the attorney-general to waive right to appeal 93 Stipulation not tp appeal . . . .- 93 Violation of stipulation — effect of 93 Abandonment of stipulation 93 STUDY — ■ Course of, for admiasioa to the bar 34 SUBPOENA — For witness to obtain testimony under depositions ; . . 122 SUBPCENA DUCES TECUM — Discovery not, granted where it would suffice : 100 SUBROGATION — In foreclosure . . ._. 370 SUBSTITUTED SERVICE — Of process-. 133 SUBSTITUTION"— Of attorneys . . . : 79 SUPREME COURT —Constitutional jurisdiction of . . ,. 8 SURETY. See Unbertaking. SURPLUS MONEYS — Arising on sale of mortgaged premises ,. . . . 397 SURROGATE — Power to compel inspection 98 Respecting surplus miOneys in foreclosure 373 Case on appeal from Surrogate's Com-t . 218 TAXES — When foreclosure will not be decreed for non-payment thereof. 374 On property sold at a judicial Sale. 387 TIME — -Additional time to serv'e pleading. .-. 160 Computation of . . '. ., 161 Of making ease. , 217 Extension of tinle to serve case 360 Of arguing motion., , »■ 279 TITLE ' — Obtained under a judgment in . foreclosure 373 Acquired on . a foreclosure' sale 395 Abstraqt of, in partition j .1 , 408 TRIAL — - Opening and closing case — : a legal right 168 Right to open and close, a substantial one 168 Test of the right ' 168 . Its denial requires a reversal , 169 Refusal to instruct a party to take. the afBi-mative 169 Error in allowing the affirmative, cured 169 When the question of relative right should be presented 169 Right, how determined .- 169 Defendant must claim the affirmative upon the trial of the action . . • 169 Issues under -whieli, plaiutiflf has the affirmative 169 Where exemplary damages are allowable, the afiii-mative is upon , the plaintiff " . 169 .What decides the. right to open and close 169 Where plairatiff has right to open and close an .action for rerit. . 170 Issues -under which the defendant has the affirmative 170 Allegations of tlie complaint adimitted 170 ' Index to ]SroT:Es. 813 ' , [See index to the r\iles, ante, page 709.] TRIAL — (Continued) : . . ' , page. ' In an action for rent. . . ■. : .1. 170 Time allowed for arguments, discretionary. . . . .' 170 Time aJlowed — how dbjection should be taken , ... . WO Counsel limited to points in issue. . . , , .■. . 170 Reading a book _. ^ .. . . .' ,. .■• 171 Case muat disclose what he reads ....;. , ..,1 ! 171 Reading from a law. book .<.'.... .'. . . 171 Reading an opinion of the Court of Appeal.*. . : .' 171 Reading an opinion ' given on a former appeal ,„,....... 171 Reading a newspaper article ....,:."'. ^ ..■.. . 171 Interference by the court with counsel. ;..."..'..... .i. . 17il , Interruption of the summing up by the judge . . .■ 172 Statemielit of .counsel -. 172 Right to open and' close ,......: 172 Exajiiining witnesses 172 Handing exhibit to jury 172 Improper remarks of counsel 172 Proof — order of, determined by the court 172 The court may limit the examination of a. witness. . . r; 172 What limit may be imposed' . upon a cross-exaimination 173 Cross-examination on irrelevant topics 173 ' Witness to rema.in until the case is closed' 173 Readily dcipositiou , 173' ' ' Explanation of absence of witness 173 Disoontinuajicfe — after allowance of alimony and counsel fee to de- fendant ......,./...■ 17.5 Counterclaim- , .'■....., 175 Extra allojvance 17.> Proper remedy on referee's dismissal of the complaint ■. . . . 17-5 Right of defendant to withdraw a counterclaim 176 Fedgned issues — to what case Rule 31 isi applicable 186 Former praictice — ^ not changed by the C'odfe 186 Submission of specific questions, the findings are not conclusive .' on the court . : ,. . . ■ 186 Conclusive, unless a new trial is moved for. . ,..,...,. 180 Jury trial in equity cases ^ how secured on a qounterelaim . . . . 186 Equity lactions hot covered by Code of Civil Procedure, § 070. . 186 Action tij set aside a, deed — second motion for new trial 187 'Settlement of issixes . . . . , 187 ''S; Motion, when not pi-emature ■ . : _...:....■.. 187 '^'■i 'Motion for jury trial, must be. made within the prescribed time. 187 '*- , Power of the court to. order issues to be settled although more than ten days have elapsed! since they have been joined 187 >^l-i Index to Notes. [See index to the rules, aate, page 709.] TRIAL— (Continued): , . page. When application for, granted ^ ] K7 May be directed after the case has been submitted 187 Power not affected b^ Code of Procedure, § 267 187 When application for, not granted 188 Not after trial 188 Issues as to the terms of a partnership — should not be fi'amed until after the accounting . . .' ' 188 Motion to set aside a judgment — ivhen feigned issue not to be directed 188 Notice of trial at Special Term — not a, waiver 188 Form of order — of reference to settle issues of fact 188 Review — - of a refusal to' Settle issues — proper remedy 188 An order granting trial of feigned issue is discretionary...-;.... 188 An order setting aside issues and directing others to be settled, is discretionary / 189 The manner of trial in equity cases rests in the discretion of the court . . . 189 Denial of motion for new trial of special issues is not appeal- able ' : 189 An order directing the trial pf issues is 189 Motion for a, new trial necessary '. . . . . 189 Defendant not obliged to move to frame issues in a divorce auction . . . . J 189 Jury trial — the right thereto is determined by thef court, not by the parties . . . ._ ; ; 189 When a party is, entitled to a jury trial .■ 190 Wlien a party is not. -. '. 190 When the right to a jury trial must be demanded — laches 109 Equitable action — issue of damages — when triable by a jury.. 190 Jury trial' where equitable relief is sought in an action for a nuisance — order granting new trial appealable 190 Action gi-owing out of doctrine of subrogation when triable.... 190 If a, case embraces > both legal and equitable claims, the whole case must go to the jury ' 190 Action for both legal and equitable relief 190 In what case defendant- is not entitled to have issues framed and tried at law , •. 190 Action to foreclose a mechanic's lien 191 Past damages done by an elevated railroad ■. 191 .\ party not entitled to equitable relief may have a trial at law. 191 Waiver of a jury trial , 191 PoAver of the court over the verdict on a feigned issue — not a trial of the issue '. 191 Motion for a, new trial necessary 191 Motion for new trial — newly-discovered evidence 191 Index to jSTotes. 815 [See index to the rules, ante, page 709.] TRIAL — (Continued) : page. Power of the court over th% verdict on a feigned issue — (Continued) : The General Term cannot set aside a verdict, whe^e no j,pplica- tion therefor has been made below .' . 191 Acquiescence presumed, in a case a motion is not made ' for a new trial . 192 Conditions imposed on granting a, new trial — a mere tender of ' performance is insufficient 192 ^ Pull costs are allowed where a motion for a new trial is made on a case '. '. 192 Dismissal of complaint — not proper on the trial of issufts, settled , ; 192 Motion for new trial, upon what terms granted'. 192 Improper statement of counsel to jury — ground fOr new trial. 192 Error in rulings on the trial of feigned issues where the verdict is made the basis of the judgment — effect of " 192 When the judgment in such case will be set aside 192 A motion must be made before commencement of hearing directed by interlocutory judgment 4 . 193 New trial granted ou wrong reason 193 Third trial .' 193 Partition — action brought under" chapter 238 of 1853- — issues settled 193 Findings — court may still make findings 195 Requests to find no longer authorized 195 Upon whom findings of fact are binding 196 Trial by the court — findings of fact and conclusions of law must be made and signed , 196 Facts not found and not asked for, not grotad for reversal.... 196 Negative fact& need not be found 196 Evidence and argument improper 196 Findings where a judgment is rendered on the pleadings 196 AVhere the complaint is admitted to be true/. 196 Additional findings — cannot be made on the settlement 'of a case 196 • J Ambiguous findings construed to sustain the judgment'. .„ 196 » Difference between opinion and findings 196 Inconsistent ruling 196 To reverse conclusions of law, the facts found must be inconsist- ent with them 197 Inconsistent findings to be reconciled 197, It is the duty of the appellate court to harmonize them 197 Eight of the defeated party where the findings are conflicting. . 197 Irreconcilable findings construed in favor of the appellant 197 ] Insufficiency of finding 197 Rule as to reviewjng facts . . j^ 197 Looking to evidence to sustain findings 197 52 816 Index to isoTiss. [See index to the rules, ante, page 709.] TRIAL— (Continued): Trial Ijy the court — (Continued): ' page. Conflicting evidence, findings not disturbed 197 Not reversible on facts by the Appellate Division 198 Reviewing findings , 198 Reviewing verdict 198 'Filing exceptions to findings not necessary where there is a certificate . . , 198 In Comt of Appeals _ 198 Findings of fact sustained by evidence, not reviewable in the Court of Appeals 198 Questions of fact in Court of Appeals — when it cannot be raised .' 198 When on appeal from a, Surrogate's Oonint, the facts will not ;be I reviewed "; » : ' 198 Fact, when found by the Court of Appeals .' . 109 Appeal on judgmenit-roll alone. 199 What is not a finding of fact :'. 199 A oonclusdon of law construed to be a finding of fact 199 Findings in State Court conclusive on alppeal to United States Court : 199 Exceptions — necessary for review - 229 Requisites to objections and exceptions 229 An objection taken on specified gr(?unds, not considtered on others. 229 An objection taken after the question has been answered. ...:.. 229 Necessity of objection and exception 229 Conclusions of law cannot be reviewed in the absence of an ex- ception '. 229 To present questions of law for revfew by City Court. 229 To the review by the Appellate Term of a judgment by the 'Gen©ra,l Term of the City Court. . '. .229 The Appellate Term' can review facts und grant new trial.'; only on exceptions properly taken ' -. 230 An appellate court will not review points not raised by u proper exception 230 On appeal from an order denying ii new trial 230 Not to be first raised on appeal 230 Failure to file exceptions,' to the conclusion of the referee. ...... 230 Necessity of exceptions to a decision of fact .....'.,....;. 23Q Failure to except to; a decision ; 230 'Exception to a decision ,...-...,....'. - . ■ ■ 230 Referee's decision not rovicwahle without exceptions ' ■ ■ 230 What reviewable where no exceptions are filed to a decision. . . . 230 Evidence taken on a reference — ^ objection to, on another trial. . 231 Must be taken toi determination of ofiicer having power to decide. 231 . Failure to file — effect of 231 Index to ISTotes. 817 [See index to the rules, ante, page 709.] TRIAL — (Continued) : Exceptions — (Continued) : page. ' Exceptions to the report of a referee appointed! to take proof of title in ai ^partition suit are requisite to an appeal to' the Court of Appeals , 231 '.When a failure to take exceptions prevents reviewing eonclusiona of lavsr , . . ., , , . 331 Appeal froim a judgment entered on a verdict 231 Exceptions to findings of fact — when good. •. . ...... 231 , Failure to request a finding oi fact — exoeptijon to a finding of fact, unsupported hy proof ; ■.";.' . . . 231 Failure to except to findings of fact, andi conclusions of law . . . 231 "The findings of fact must sustain the judgment — otherwise an exception to the legal conclusion is good 231 Exception to a conclusion of law svistained by the finding of fact.' 232 Exceptions to the decision of the referee present errors of law only :■'. .232 Decision not reviewed', where there are no exceptions to the con- clusion of law of a referee, but only 'to certain findings of fact. 232 Exceptions to findings of rfact and eonelusionis of law 232 ■' 'Exceptions to findingsi of fact — improper 232, Failure to except to conclusion' of law , ■. 232 In absence of exceptions, an appeal presents no questimii to the court .. . .- 232 To incompetent evidfence — as effective in equitable action, as in actions at law. ■ 238 Equity cases — when an error is not ava.ilable 232 Exceptions to evidence in equity causes, when disregarded. ;:. .-. . 232 'V\Tien not available on appeal •. 232 ilode of reviewing question® of fact and of law, after a trial by ,. the court without a'jury. 233 Exception to a direction of a verdict, after the close of th6 trial . 233 When there is nothing to review 233 Failure to file exceptions to a, referee's^report. . . . '. 233 ^Evidence excepted to subsequently stricken out — effect 233 ^ A motion to strike out evidence, not one of legal right 233 ■ Exceptioil to 'denial i^f motion to amend' answer on trial, unavail- ing ^ . 233 Error, to justify reversal, must prejudice exceptant 234 Sufficiency of exceptions taken on a murder trial — when the re- fusal to strike out erroneous testimony is not ground for re- versal 234 Power of court to review errors without exception 234' Motion fpr a non-suit 234 '■',•'. ''A;',".- ' 818 Index to Notes. [See index to the rules, ante, page 709.] TRIAL — (Continued) : Exceptions — (Continued): page. To review tli€s iraotion the ease must sliow a ruling and an ex- ' ception thereto 234 Effect of ex;oeptions to refusal to grant non^suit 234 When, exception based on general grounds fails 234 Exception to deniall of motion — review of evidence 234 Motioil for a new^ trial, when necessary for a review 235 Exceptions necessary, where a miction for a, new trial is denied . . 235 Exception to the denial of the motion for a new trial. . ' ?. . 23.5 . -- ' ' Appeal from judgment only , . 235 ^ Dfenial of motipn for new trial — not the subject of exception . . 335 ■ Office of an excepti a referee's conclusions of law ... 239 An exception to a finding is not. availabjle unless it specifically states the ground of error relied upon '. 239 Strictness as to taking exceptions to conclusions of law 239 Necessity of specific objections 239 Sustaining ruling excluding evidence on general ejiceptions. . . . 239 When exclusion of material evidence, under » general objection, cannot be sustained : 239 , General objection to evidence — when overruling^ thereof sus- t£jined on appeal .' 239 Crcneral objection as to damages, -when not good on appeal.. .. 240 ' V General objection - — applies to the competency of the evidence, and not to that of the witness 240 liistinction between cases where evidence is received and ex- cluded Tinder 240 Objection to conclusion of trial judge, how raised 240 ■ General objection to evidence which might become competent . . 240 General objection to a question proper in part 240 ^ General objection to a question calling for matter of opinion ' from witness not shown lo be qualified , ,240 To a portion of a. charge 240 General objection not sustained by specific one 240 General objection — when not available on appeal 241 > Failme to take obieetion — rulings still reviewable: '. . 241 ' immaterial error — not a ground for reversal 241 Immaterial exceptions 241 Frivolous exceptions in Com-t of Appeals 241 ^'2*) Tndex to Wotks. [See index to the rule?, ante, page 709.] TRIAL— (Continued): • page. Reservation of an objection — duty of the party objeettng 241 Duty of referee to decide at the time when an exception is taken 241 Eoxcfeption to the reservation by a referee of his decision on an objection ;....,,.. 241 Reservation by referee of decision on exception ; .....'•. .; . . 241 Filing exeeptdons nwnc pro tun6 '. . .\ . . . . . 242 Exceptions filed nunc pro tunc — wlien. . , . '.V . . ,. 242 Decision suspended to allow application to file exception nunc . '_/ pro tune ' 242 Objection to argument of counsel before jury.-. 242 Statement of counsel, in an action for libel, "of the recovery in other actions . , . .,. 242" Waiver of — ijiroof to show waiver of exception must appear in case. 242 When not stated in points or argued 242 No exception lies, to evidence, addressed to the court, upon the ques- tion of admitting dying declarations ' 242 Exception — pr<)j)er way to review oixl'er of referee amending a ' pleading 242 < Objection to evidence — need not be repeated 243 Objection once taken is sufficient ■ \ 24:! A specific objection to the admission of a, certain class of evi- dence available although subsequent objections were general in character '......' , 243 . Verdict, subject to opinion of General Term — exceptions first heard , I at General Term , .' 243 ',,•■, , /^Exceptions to be first heard at General Term — objection thereto cannot be first made in the Court of Appeals 243 Order that exceptions be first heard at General Term — when un- authorized , , , ■ i 243 Oral directions is insufficient 243 Exceptions to be first »heard at the Appellate Division ^ com- plaint cannot be dismissed on inerits.: 244 Exception to nonsuit, to be first heard at Appellate tJivision, implied ' 244 Neglect to except to order directing verdict and exceptions to be heard at General Term , 244 Exceptions to be first heard at Appellate Division — what is a sufficient certification 244 Exception necessary to raise objection to the failure to subniit case to jury 243 Review, without formal objection to the dismissal pf the com- plaint :■. 244 Exception to a denial of a nonsuit — -when waived '244 Index to Notes. 821 [See index to the rules, ante, page 709.] TRIAL — ■ (Continued) : page. Objection not talien below 244 Objections not raised on the trial . '. '......■. 244 A claim that^ the credibility of witnesses should have been sub- mitted to the jury cannot be raised for the first time on appeal 244 When objection to lack of exceptions to a referee's report taken for the first time on appeal, is unavailing , 245 Questions not raised below _. 245 An objection that the cheek mailed in payment of premiums was not a good one cannot be taken for the first time on appeal . . 245 Objection to award of damages will not be considered first ■ on appeal .' 245 Negligence,, as conclusion of law — ^ review in Court of Appeals 245 Power of Court of Appeal^ on appeal 245 Verdict against the weight qf evidence in criminal cases 245 , Exceptions to the denial of a motion for a new trial on the ground of newly-discovered evidence 245 Bill of' exceptions in crimiJial cases 245 Settlement of bill of exceptions will not be compelled ■ in the ease of an escaped prisoner 245 Failure to ishow that exceptions were filed 245 Exceptions ijot waived by offering evidence in rebuttal 246 Motion to amend case by inserting exceptions — where made 246 Sufficiency of exceptions — what reviewable under.. 246 Where none are taken to. the dismissal of the complaint or the referee's conclusions of law — but only to the admission of evidence on the trial , 246 Where a, .case contains none of the evidence ■ 246 Sufficiency of exceptions to raise questions oh appeal .■ 246 Exception to a sum allowed, raises question whether the ' entire sum is proper 246 Single exception — when sufficient ! 246 State together 246 Report of interlocutory referee — review of 246 Exceptions proper to a report on a, receiver's account 247 Stipulation that exceptions were taken — ^not equivalent to excep- tions 247 When, no exceptions He — to review errors on trial, exceptions need not be taken to report ,*. . . 247 To refusal to find the particular facts making up the general finding • •. 247 To referee's findings of fact ■ 247 AVho cannot except to referee's report ; 247 Error committed on trial cured — by instruction to disregard evi- dence 247 Imprbper statement of counsel 247 Remark of the judge — the jury directed to disregard it ,. 247 Error in admitting incompetent evidence cured by subsequently making it competent ; 247 822 . Index to Notes. [See index to the rules, ante, page 709.] TRIAL— (Continued): ^ page. Exceptions to the charge '■ — to the jury 247 Necessary to enable the Appellate* Term to pass upon a charge or request to charge 248 Error cannot be predicated to the judge's charge, without an exception 248 Error iii charge — jilidgment reversed where no exception is taken . ■. ,. . 248 ' An error in the charge, not explicitly excepted to, is not a suffi- cient ground for reversal 248 Eevers?,! for a misdirection to, the jury, even though no excep- tion was taken at the trial 248 Case submitted to jury on erroneous theory — new trial granted ■without exceptions ....'. 248 Power of General Term to reverse without exceptions 248 Faililre to except to tha rule of damages adopted 248 Kight to require a charge upon propositions of law 248 Right of counsel to call the attention of the court to particular , requests to find 249 ' General exceptions to a number of refusals to charge, untenable. 249 Attention of the court to be called to the precise point 249 Sufficient exception 249 \STien a portion of a, charge is correct 249 When only a portion of the request to charge is correct 249 To the whole charge — when too broad 249 Objection to certain phrases of a, charge must be taken specifi: cally ' , 249 Exception to charge — need not repeat the portion objected to. 249, I^equest to charge, which siijiply repeats or separates the charge already given 250 Grounds thereof need not be stated , 250 Where the error in the charge is harmless 250 A, statement by the judge of his recollection of the testimony. 250 .Statement by the judge of his intention to throw the case out of court , 250 Comment by the court upon the testimony 250 An Expression of its opinion by the court 250 I. Expression of an opinion in a charge 250 Exception t^ specific proposition or remark of the trial judge must be clear '■ 250 Ambiguous charge — exception to 250 Exception to the direction of a verdict sufficient — not necessary to demand submission of facts to the jury. 251 General exception to the direction of ' a verdict — when insuffi- cient 251 A single exception to adverse rulings on several requests for a verdict — when unavailing 251 Exceptions to direction of verdict — when new trial ordered.... 251 In1)ex to Notes. 823 [.See intlex to the rulea, ante, page 7.09.] TRIAL— (Continued): , ^ Exceptions to the charge — Continued): page. Questions raised by the exception ; 251 Effect of such an exceptipn 251 Question of Especial damages raised without exception to the direction of the verdict 251 Req[uest to court to direct a verdict — effect of . . i 251 Result of requests by both parties for the direction of a verdict. 252 Exception to denial of request toTdirect a verdict, which fails i to specify the ground thereof, 252 Failure to except to a direction of judgment — only exceptions reviewed 252 Error in i a charge based upon a fact assumed by all the parties to exist .^ 252' Instruction to the jury in the absence of defendant's counsel. . . 252 ■ Objection to improper matter in a verdict — when to be taken . 252 . Failure to prosecute — dismissal — as to rule in districts other than the first .' 263 What not sufficient delay to defeat a motion for a dismissal .... 263 Cause reserved, for three years — motion to dismiss denied..... 263 Failure to proceed for ^wo years' — not a ground ior the dis- missal of the complaint ■ • . • 263 Failure to proceed for nearly six years is prima facie case of unreasonable delay 263 Failure of the defendant to notice the case for trial, and other circumstances, justify conditional denial of motion 263 Dismissal for failure to ptoseeute when properly denied — what are unreasonable conditions of relief ., 264 What laches justify dismissal 'Mi Laches of defendant who has set up counterclaim 264 Direction of judgment for a counterclaim, improper '. 264 , Discharge from jail of a defendant who fails to pay alimony . . 264 Remedy where the ease is not at issue.-T ......: 264 Dismissal f,or laches of pla,intiff, discretibnary 265 Motion .therefor may be noticed before the filing of « note of issue , 265 Motion proper although the defendant has served a cross notice of trial ......... 1 265 Right to move to dismiss — not waived 265 \, , Defendant may move without giving notice of trial 265 , Where both parties notice for trial — neither can move 26.'j The granting of the motion is in the discretion of the court .... se.'i ■ One of several defendants may move to have the complaint di.s- . . - missed as to him ! .'. ' 265 ' ^ What the defendant must show .1 ..... . 265 A dismissal is a judgment for defendant 2(i5 ' 'Motion not proper, pending a stay of plaintiff's proceedings.'. , . . 260 824 ^ Index to Xotes. ' [SeS index to the rules, ante, page 709.] TRIAL — (Continued) : I'ailure to prosecute'— (Continued) : . page. Eflfeet of one of several defendants dying j 260 That plaintiff is dead, and no representatives can be found, no excuse ^ 266 Refusal of referee to proceed unless liis fees are paid — a ground for dismissal /. ^ 2G(i Preference — plaintiff may obtiun preference on tlie ground of the defendant's arrest or attachment — right does not depend upon the value of the property attached ,". 206 Definition of " trial " or " hearing " . , . . ■. ......... 2UC The plaintiff is entitled to make the motion ' 2(i6 Laches — in fDing note of issue — delay in sending it to clerk 2!.t-2 Neglect to file note of issue — ■ application to supply must be on first day of term : ,• • • • 2y2 Default' — ^case reinstated — second default -;7 practice on '... 292 Calendar — control of the court over its calendar .., 293 V Motion to strike from — contents of papers on motion. 293 /■ ' Appeal from an order putting a cause on the calendar 2!)3 Case in first department — reversed on appeal — its place on the day' calendar •. .- 293 ■An amendment of a pleading necessitates a new notice of trial. . 293 Note of issue filed before an answer, returned, l\as been res?rved. 293 Service of an amended complaint 293 ■ ,, Expense of printing calendars : . . . . 293 Preferred causes — action by an administratrix for negligent killing. . 293 Preference under Code of Civil Procedure, section 791, subd. 5 . . 293 Under XJode of Civil Procedure, section 791, subd. 4 294 Right is mutual : 294 A cause cannot be made a. preferred one by stipulation 294 "Wihat is not a strict compliance with Code of Civil Procedure, section 793, to entitle to a preference , 294 ; , '^ The preference is available, though- the motion to gi'ant it is op- .■'.,, ' posed . ". 294 Order in preferred eases 294 Order to put a caiise on the calendar for preferred causes — ■ when necessary , 294 Issues in a special proceeding, how preferred 294 Cause need not be upon the calendar before a notice of trial and ' a notice of motion for a preference can be served 29.5 Privilege not regained by amending the complaint 295 Oi'der in which civil actions are entitled to preference 29.5 Short causes — court not prohibited from establishing » calendar for , , , 295 Court to determine the time a trial will occupy 295 Equity case — ■ not triable at Circuit . .■ 7 295 Consent to n trial at Circuit — ■ from what not intplied ....... .\ 295 Index to JSTotes. 825 [See index to the rules, ante, page TOQ.] ' TRIAL — (Continued) : Preferred causes — (Continued): page. Police commissioner of New York entitled to preference 295 Notice of amplication to be served with notice of trial 295 .Facts justifying preference to be set forth in moving papers. . . . 295 What determines date of issue '........ 295 When notice may be served 296 Action for causing death of infant not entitled to preferencij. . : . 206 Extreme age of plaintiff ! , ' 290 Failure to make motion operates as u. waiver ; . . "390 ' Action for separation not entitled to preference 296 Third Department rul^s — • rule 15 strictly enforced 29() Trial of matrimonial actions' '125 Se^ Inquest. By referee. See RErERENCE. Place of. See Venue. TRUST COMPANY -^ Appointment of — a.% guardian'. 347 ■{ UNDERTAKING — Rejection of sureties on — a new undertaking must be filed and justification take place, in what time 55 Vaca^ting order, of arrest because of iiisuffiQient undertaking. . . . 55 ' Not void, as taken colore officii. .^ - 55 Undertaking to stay proceedings on appeal, when to be filed .... 55 Filing necessary . '. 55 ' f Rights, etc., of s.ureties 55 Canceling of an undertaking on file 55 Enforcement ".....'.... 50' Liability of surety ' 56 Right of sureties to be discharged 56 Amendments to undertaking given on procuring an arrest 57 Allowed even upon appeal : 57 As to the amount ". . 57 Where it has not been pi-oved or acknowledged • • ■ • ■''' By adding the names of other sureties. .'..., 57 Where it has not been aoknovpledged before a proper ofiioer". ... 57 When given on procuring an arrest 57 Use of a seal on an undertaking implies a considteration 57 Justification, aflidavit of ' , ; . . . 57 In what amount on appeal to the Appellate Division 58 Must be double the sum specified in the undertaking 58 That sureties justify to miore than is necessary is not dbjection- able , J 58 Failure .to justify in double the judgment and the $500 does not invalidate the, undertaking 58 Partial justification — may sustain appeal, when. 58 1 Effect of the failure, of the sureties, excepted to, to justify 58 . ;SuTeti^s not released by their failure tO' justify 58 ^ . ■ 8-26 '. Ind]j;x to jSotes. [See index to the rules, ante, page 709.] UNDERTAKING — (Continued) : Justification, affidavit df — (Continued) ; page. Not because funther sureties are required , . . . . 58 When a substitute not required for an insolvent suret/ 58 Default by plaintiff, aftef requiring justification 58 Agl-eement to accept surety — without justification — effect of.. 58 , Bail, and- their justification . . '. gg Time within w-hich a Justification must take place where a new undertaking is filed. 59 ■ Endorsement of approval -^ omission thereof. .'._ 59 Attorneys — cannot become ba,il .......... .,.% 59 When they may be sureties on undertaJcings 59 iLiabillty of, on an undertaking 59 Sheriflf — cannot ibecome bail 59 Discharged by qualification of bail , 59 'City Court (of New York) -^ attachonent — justification 59 tfndertaking o< guardian to sell infant's real abtate 350 Sureties on bond! of ^ special guardian 353 UNITED STATES COURTS — Attorneys of 45 VENUE — C!hange of — ^the established rules will not be relaxed 319 Rules must be strictly observed ....'..: 319 The witness must swear to advice of counsel 319 , , 'Where neither party resides in the county of the venue 319 Affidavit should state facts to be proved by \ 319 Should disclose the grounds of the witnesses' knowledge 319 5-: ,?'. trVlr"^^ papers' should d^Mose the occupation and residence by street ■ ": ,!i* '■"::, and number- of every 'material witness 319 What is a siuffieient affidavit , 319 When informal andl defective.'.'. .-. :'..... . ^. .^ ai9 ■What the afl5davit should contain ......;....'.. 320 , In partitiom suit " 320 In a replevin action ._ 320 ' Assault — - proof of condition after it 320 Should state whai witness will prove 320 Word " necessary '' need not be used in the affidavit. 320 Failure to state names, residences and that witnesses would testify .1 321 Affidavit > must show material facts 321 Expectations not sufficient 321 What ' statement pf expectation' is sufficient 321 Affidavit iiu third department need not state to A\hat witnesses ,)• , will testify ' ,.,. . 321 ■ What is an insufficient affidavit ^ 321 Third departmeo^t — failure to allege grounds of expectation of testimony .' . . 321 Information of the affiant, not disclosed . . . 321 v!;* ' Index to Notes. ' 827 / [See index to the rules, o«tc, page 709.J VENUE— (Continued): ' page. Im,pprtant to sliow their materiality, . . 322 Materiality of the witnesses. . . , , ■. 322 That the party cannot safely proceed toi trial 322 ■ ' That he hais a defense upon the merits 322 That he has stated his case to his counsel . 322 That he has stated to his counsel the facts that he expects to prove by his witnesses. ...,...., 322 Names of the witnesses , . . ' 322 Should he -made by the defendant himself. ' 322 , , Upon what facts motion granted. 322 Upon what a decision will be based 3^2 Convenience of witnesses — • the greatest number -of witnesses .3-23 Seventy-eight witnesses — regarded' as a fra/ud. 323 In the county where the witnesses 'reside ^-^ indepemlent of their distance froin court house 1 . 323 "" Resident witnesses alone considered 323 > -Witness outside the State — not considered 323 Inconvenience of the plaintiff, not considered. . . .' .•'.|i323 Residence of thpse acquainted with facts considered before that of experts ,..,323 Venue nolt retained for convenience of expert witnesses '. . 323 Convenience of witnesses where a. village is defendant 324 Where the proiper venue for convenience of witnesses is doubtful the place Where the action arose may control 324 Venue, mot changed from Westchester |]o New York county for the convenience of witnesses i. . .' 324 Westchester county — portion annexed to New York , 324 Change of venue from Queens to Xew York county — when granted i . 324 Change to New York coumty from a rural county /. 324 When venue changed from Rensselaer to Albany county 324 Changing the venue for convenience of witnesses in action for . ' malicious prosecution " ', ) 324 Place decided by the number of witnesses ' 324 Venue where defendant's witnesses are more numerous 32o Conflicting applications .' 325 ' What may be shown in the opposing affidavits 325 -Cha.nge of venue to oounty of plaintiff's residence on defendant's imotion that.it be changed to the defendant's county. 325 Opposing affidavit — when insufficient 325 Where all the defendrant's do not join in the motion the reason , must apipear , 325 Motion should' (be on notice to all the iparties. . . : ....*..... 325 Notice to other defendants. . . /. . 326 No dd'stinction between aotioms ex contractu and.eas delicto 326 Motion "to change the venue, or plaCe of trial," good. . 326 828 , . Index to Notes. [See index to the rules, ante, page 709.] VENUE— (Coatiiiued) : Convenience of -witnesses — (Continued): . page. Bv whom to be made - •.'..., ':). 326 The venue can only be changed in the ca«es specified 326 Practice as to imotions to^ change to proper county, and to change for the convenience of witnesses . . '. 326 When motion may be made , . . , 326 When premature ....'. .N. ' . . . 326 Appearance and dtemand, when necessary 326 ' Demand for change not necessary. 326 Denied if made for delay , 326 That plaintiff will lose a term, not ground for denial 327 , In action for unlawful arrest ■-,-•• 327 When a, change will delay the trial " , ;. . 32" Place of trial, New York county, after annexation. ...'...... .,.,' . 327 As to cities of second class .' . . 327 Notice to oo^dafendant w^ho has not appeared 327 Proper place df trial : 327 Court cannot of its own motion change place of trial df transi- tory action '. . .~ ,. . 327 Demand for change of place of trial may .be served with amended answer , 327 Change of venue to proper county, one of right 327 Foreign corporation cannot become residfent of this State 327 Adtion against railroad may be brouglit in county where road is operated ' • '.'...' 327 llesidence — by street and number and occupation should be stated. . 332 ,. ' Not necessary to state, other than coun'ty 332 .Counlty of residence — decision 332 Residence in adjoining State. .' • 332 ■ Term " residence " discussed. 327 Meaning of " resided in section 984 of Code of Civil Pix)cediiTe. 332 Pleadings as fixing the venue — variance as to venue between the summon.^ and complaint '. . -. 327 The complaint controls. ;. 327 Notice of trial — effect of , 328 Place — of transaction ■.,,. - . . ■ 328 County in which the transaction took place favored *..... 32S When the venue will be changed to the place of the transaction. , 328 Tlie iplace of trial may be fixed by stipulation 328 Where the preponderance of witnesses are in the county of the' transaction 328 When the place of tlie transaction determines the venue 328 - It controls where tlie number of witnesses is the same 328 \YIicri' the traiisacticnis occurred in two counties 32S .Convenience of witness_preferredi to place of contract 329 Other considerations besides convenience of witnesses ..:. 329 - "■ , ■ Index to Notes. 829 I 4. [See index to the rules, ante, page 7D9.] • VENUE— (Continued) : -Place — (Contimied) : . page. Fair and impartial trial — what proof that it cannot be had required '. 329 Proof required as to an impartial trial being impossible 329 When a change of venue is a matter of right 329 When it should be changed upon demand 329 On motion to change for convenience of witnesses, court cannot change because improper county is named. . ; 330 Demand to change not defeated by a stipulation 330 Stipulation as to evidence , 330 , That iWitnegses would swear as stated not accepted 330 As to the date of issue — it does not bar a change of venue ... 330 Offer to pay expense of adversary's witnesses 330 Stipulation that the witnesses will testify to the facts claimed. 330 • Venue changed on condition that certain testimony be taken by deposition . 330 Demand to change venue must accom|)any the answer — default in serving _ an answer 331 May be changed to promote ends of justice • 331 Game laws-^vejiue of action brought under the game laws 331 Excise Law — power of Supreme Com-t to change the venue is not ' divested thereby 331 Laches — motion must be made with diligence . . . : .■• ,. . 331_^ Limit of time to moVe 331 Removal of a cause from a local court to the Supreme Court. . . . 331 When denied for laches , 331 The motjoi* need not be made within ten days after a failure to consent 332 A motion is too late after a stipulation fixing the time of trial. 332 .Waiver — stipulating to accept short notice of trial is a waiver of objections to the venue ~ ,. . , , 332 Motion — where made 332 Changed venue — proper j^lace to move to open a, default 332 Amended complaint ■ — place of trial cannot be changed in an amended ^', complaint ; '. 333 An amendment of pleading — changing place of trial, — pending motion therefor .....' '. 333 Appeal — order changing venue ■'— appealability of, to General Term. 333 Decision of Special Term not disturbed on appeal. 333 Review of exercise of discretion. 333 It is a matter largely in the discretion of the Special Term .... 333 ■ Venue of f oreelosure action 364 VERBAL STIPULATION 91 WAIVER — Proceeding with a reference — -a waiver of what 183 WARD. See Guardian ad Litem ; Guardian and Ward. : WITNESS — Convenience of. See Venue. INDEX TO LOCAL RULES. [See index to the ruleB, ante, page 709.] PAGK. Albany county — Supreme Court , ■ • • 613 Allegany county — Supreme Court •'■' S16 Broome county — Supreme Court : ■ 620 Broome, county — County Court ^. . 622 Cattaraug-us county — Supi-eme Court '['... 616, 623 Cayuga county — Supreme Court 623 Chautauqua, county,^ Siipreme Court ... .; 616, 625 Chemung county — Supreme Court ''. , 625 Chenango liounty — Supreme Court 627 Cortland county — Supreme Court : . '. . 629 Delaware county — Supreme Court 631 Erie county ■ — • Supreme Court ' 633 Erie county — County Court 647 Erie county — Surrogate's Court • 648 Franklin county ^— Supreme Court 65 1 ■ Frankliii county — Surrogate'^ Court 651 Genesee qounty — Supreme Court . ' 616 Herkimer county — Supreme Court 654 J'eflerson county — Supreme Court 655 Jefferson county — County 'Court 656 Madison county — Supreme Court 657 Monroe comity — Supreme Court ^ ....... . 659 Monroe county — County Court '. 660 - Mftntgomery county — Supreme Court ■. ■ 662 lifassau county — Supre'me Court . ....:... 662 Niagara county — Supreme Court / . . .: 616 Oneida county — County Court '■ ., ._. 664 Onondaga county — Supreme Court '..'T...... 667 Ontario county — Supreme Court . , . *■ . s 671 Orange county — Supreme Court .■ ^ 671 Orleans county — Supreme Court '. , 616, 672 Oswego county — Supreme Court ......'...'.. t 672 . Oswego county-^ County Court. ' ■. ' 673 OtSfgo county — Supreme Court ■'. 675 Oiieens ' county — Supreme Court , 677 !p.ensselaer county — Supreme Court , 678 ■Richmond county — Supreme Court . . . ' 680 Schoharie county — Supreme Court 682 Schuyler county — Supreme Court » 682 Schuyler county — County Court ^ 6S3 Seneca county — Supreme Court > ^ 684 St. Lawrence county — Supreme Court 685 Steuben county — Supreme Court r 685 Suffolk county — County Court ..'....,.. ,>. ,' . . . 686 Tioga county — Supreme Court , ; :.:...: .,.'.... 6S8 Tompkins county — Suprenie Court ,, i i . . , ....:., '.' . 690 Warren county — Supreme Court :'. 1 1\ . .,.,..' ,..'.,....,.. 693 Washington county — Supreme Court ......... i. ...:..,... .,i.. ......... . 693 Wayne county — Supreme- Court 1 .:....,.. . 693 Westchester county — Supreme Court , 694 Wyoming county — Supreme Court 616 [830] RULES OF PRACTICE OF THE Court of Appeals OF THE STATE OF NEW YORK ALSO RULES FOR ADMISSION OF ATTORNEYS ANNOTATED Amended to Octoter i3, i9i0 By EDMUND H. SMITH Former Reporter of the Coatt of Appeals NINTH EDITION By CHARLES J. HAILES Of the Albany Bar Albany MATTHEW BENDER & CO. Nbw Yoek BAKER, VOORHIS & CO. 1910 Copyright, 1893, 1894, 1895, 1896 and 1898, By BANKS & BROTHERS Copyright, 1904, 1906 and 1907, By BANKS & COMPANY Copyright, 1910, By BAKER, VOORHIS & CO. AND MATTHEW BENDER & CO. J. B. liTON COMPANT, PRINTERS, ALBANY, N. Y. PREFACE. In order to completely cover the important adjudications bearing upon tte practice in the Court of Appeals, it has been necessary to reset and make all new this Ninth Edition. For these annotations, as well as for much valuable advice and assistance in the preparation of the work, the editor is under obligation to the original author, Mx. Edmund H. Smith, former Eeporter of the Court. €. J. H. Albany, October 12, 1910. TABLE OF CONTENTS. FAQE. Notice to attorneys vii Ktjles of Pbacticb: Order Adopting Rules , 1 Rule I. Appellant to File Return; Effect of Omission 11 II. Further Return may be Ordered 86 III. Attorneys and Guardians Below to Continue to Act 94 IV. Appellant to make a Case; its Form 101 V. Cases and Points to be Printed; Mode of Printing 107 VI. Appellant to Serve Copies of Case; Effect of His Default. 107 Vn. Copies of Cases and Points 110 VIII. Statement and Discussion of Facts; Absent Judges 118 IX. Criminal Causes 145 X. Submission and Reservation of Causes 145 XI. Motions and Appeals from Orders 148 Xn. Call of Calendar 158 XIII. Time of Argument 160 XIV. Preferred Causes 162 XV. Defaults 172 XVr. The Remittitur 174 XVn. Affirmance by Default 203 XVin. Enlarging Time ; Revoking Orders 204 XIX. Calendars 206 XX. Motions for Reargument 209 BxTLES FOB Admission of Attobneys and Counselobs: Order Adopting Rules 216 Rule I. Admission and License 216 II. Admission after Practicing Three Years in Another State or Country, etc 226 m. Prerequisites to Admission on Examination 229 IV. Prerequisites to Examination by State Board of Law Ex- aminers; Periods of Law Study; Admission in Another State or Country 231 V. Study of Law; Regents' Examination and Certificate; Vacations ; Clerkship Certificate 235 VI. Proof of Compliance with Preliminary Requirements 247 vn. Filing Certificates Nunc Pro Tunc; Certain Regents' Certifi- cates Validated 252 Vni. State Board of Law Examiners 254 IX. Time of Taking Effect 256 Forms 263 [vl vi Table of Contents. Appendix : page. Regents' Instructions to Law Students, 267 The Jurisdiction of the Court of Appeals 278 Rules of the State Board of law Examiners 286 Rules Relating to Ofeioial Examinees of Title: Rules of Court of Appeals 289 Rules of State Board of Law Examiners 393 Index 295 NOTICE TO ATTORNEYS. The first Monday of each session only will be a motion day, on which oral arguments will be heard in original motions. Original motions may be submitted, without oral argument, on any Monday when the Court is in session, provided they are submitted by both sides. After the day calendar is made up — at 6 o'clock p. m. — stipulations are too late. The Clerk has then no power to leave a number off. The full number of cases and points (18) are required, without which appeals may not be heard. The " Order Calendar " is composed of preferred causes, and the notice of argument must claim the preference as " an appeal entitled to be heard under Rule XI of the Court of Appeals." Appeals from orders should be noticed for the first Monday of a session. The county clerk's certificate, or waiver thereof imder section 3301, Code C. P., are necessary parts of the printed case on appeal. When a new calendar is ordered, it is desirable to notice causes in which the returns are filed, at once. Counsel residing in New York city and its vicinity who intend to argue causes on the General Calendar, should send their residence addresses to the Clerk, and should promptly notify him of changes in their office addresses. The daily sessions of the Court are held from 2 o'clock p. m. to 6 o'clock p. M., except Fridays only, when the Court will sit from 10 A. M. to 2 p. m. Every Exhibit presented to the Court should be plainly marked with the address of the Counsel Bresenting the same, as well as the title of the cause. [vii] viii Notice to Attorneys. The Clerk always submits for Counsel who are absent when their cases are called for argument, provided their papers have been filed as directed by Eule VII. Bequests for copies of opinions should be addressed to the State Reporter, Albany, N. Y. The eighteen printed copies of the case required by Rule VII to be filed with the Clerk must be bound in light-colored (not dark) paper, and should not be sent to the Clerk for filing until after the appeal has received a Calendar number. Each day's Calendar and all court notices to the Bar are printed in the New York Law Journal, which is the legal publi- cation through which the Clerk endeavors to reach the legal pro- fession. Attention of Attorneys is called to Rule YII, which will he strictly enforced. COURT OF APPEALS PRACTICE. RULES OF THE COURT OF APPEALS. ORDEE ADOPTING RULES. In The Court of Appeais, December 15, 1906. Ordered, That the following amended rules regulating the practice and proceedings in the Court of Appeals, be and the same are hereby adopted in pursuance of the pro- vision of the Code of Civil Procedure, such rules to take effect January 7, 1907. Rules; making and publishing. The Judiciary Law (chapter 30 of the Consolidated Laws, chapter 35, Laws of 1909) provides as follows, in relation to rules of the Court of Appeals: Court of Appeals may make rules of practice in its court. § 51. The Court of Appeals may from time to time make, alter and amend, rules, not inconsistent with the Constitution or statutes of the State, regulating the practice and proceedings in the court. (Formerly part of section 193 of the Code of Civil Procedure.) General rule or order of Court of Appeals must be published. § 52. A general rule or order of the Court of Appeals does not take effect until it has been published in the newspaper published at Albany, designated pursuant to section 82 of the Executive Law, once in each week for three successive weeks. (Formerly part of section 18, Code of Civil Procedure. ) Power of the Court of Appeals as to admission of attorneys and counselors. § 53 (sub. 4). The rules established by the Court of Appeals, touching the admission of attorneys and counselors to practice in the courts of record of the State, shall not be changed or amended, except by a majority of 2 CouET OF Appeals Peactice. the judges of that court. A copy of each amendment to such rules must, within five days after it is adopted, be filed in the office of the Secretary of State. (Formerly part of section 57, Code of Civil Pro- cedure. ) Application of provisions as to publishing. It has been held that section 18 of the Code of Civil Procedure (supra) [section 52 of the Judiciary Law] has no application to rules of Court of Appeals relating to the admission of attorneys and counselors. 16 Alb. Law J. (1877), 309. It is not essential to the validity of amendments to rules of the Court of Appeals regulating the admission of attorneys, that they be published in the volumes of the Session Laws, and that a copy thereof be filed with each county clerk, as required by sec- tion 57 of the Code of Civil Procedure (supra) [now subd. 4 of section 5'3, Judiciary LawJ. Those requirements are only di- rectory, not mandatory. Matter of Maxwell (Supr. Ct. 1891), 14 W/ Y. Supp. 658; 60 Hun, 58L Rules of court. Force of. — ■ The rules of the court, being made under special statutory authority, have the force and effect of statutes. Matter of Moore (1888), 108 IST. Y. 280. Belief from failure to comply with. — Failure to comply with a rule which is directory merely, may be obviated by the court allowing the act to be done nunc pro tunc; but this is not so in the case of mandatory provisions. Matter of Moore (supra) ; and see Martine v. Lowenstein (1877), 68 IST. Y. 456. In conflict with Code. — A rule of court which conflicts with the Code is inoperative; French v. Powers (1880), 80 X. Y. 146; Gormerly v. McGlynn (1881), 84 IST. Y. 284; and the effect of a statutory provision cannot be altered by a rule of court. Eice v. Ehele (1874), 55 N. Y. 518; Glenney v. Stedwell (1876), 64 N. Y. 120. Construction of statutes hy rules. — Rules of court, made under the authority of the Code, may be considered as giving construction to the statute. Myers v. Feeter (.Supr. Ct. 1850), 4 How. Prac. 240, 241. Disregarding rules. — The court may deviate from its general rules whenever in its judgment a proper case is presented. Clark V. Brooks (N. Y. Com. PI. 1864), 26 How. Prac. 285. EULES OF COUET. 3 A substantial remedy cannot be prevented by a neglect of the opposite party to observe the. rules of practice in his pleading. Goldberg v. Utley (1875), 60 JST. y. 4:27, 429. Courts are opposed to departing from the customary modes of procedure, especially where such departure tends to infringe on the general rules of the court. Battershall v. Davis (Supr, Ct. 1861), 23 How. Prac. 383. The true object of technical rules is to promote justice or pre- vent injustice. When they fail of those ends courts should neither encourage nor enforce them. People v. Tweed (1875), 5 Hun, 353, 358. Practice it'hen Code and rules silent. — The former practice of the Court for the Correction of Errors governs the Court of Ap- peals in cases not provided for by its rules or the Code. Hast- ings V. McKinley (Ct. App. 1853), 8 How. Prac. 175; and see Mut. Life Ins. Co. v. Bigler (1880), 79 K Y. 568. The General Rules of Practice. — ■ By general usage, the pro- cedure prescribed by the General Rules of Practice established under section 17 of the Code of Civil Procedure, (Judiciary Law, sections 93, 94) although, by the terms of that section, not bind- ing on the Court of Appeals, is followed there, where applicable, in cases not otherwise provided for. See, e. g., query as to appli- cation of Rule 2 of the General Rules of Practice to the Court of Appeals in People ex rel. Wallkill Valley R. R. Co. v. Keator (1885), 101 K T. 610, 613. But, by force of section 3347 of the Code of Civil Procedure, which regulates the application of certain portions of that Code, subdivision 10 of section 791, which mentions among preferred causes "A cause entitled to preference by the general rules of practice," does not apply to the Court of Appeals. Nichols v. Scranton Steel Co. (1892), 135 IST. Y. 634. And the provision of section 1361 of the Code, which declares that appeals from determinations in special proceedings " are governed by the provisions of this act, and of the general rules of practice relating to an appeal in an action, except as otherwise specially prescribed by law," does not apply to appeals to the Court of Appeals. Matter of Southern Boulevard R. R. Co. (1891), 128 ¥. Y. 93. Pre-existing practice. — Although a revision of court rules may 4 OouET OF Appeals Puactice. not contain any saving, in terms, of pre-existing practice, it can- not be deemed to abrogate a practice then long established, which was not dependent upon any court rule which was the subject of revision. Miller v. Stettiner (N. Y. Supr. Ct. 1862), 7 Bosw. 692, 696. Custom of the courts. — All matters of practice are, in the first instance, in the discretion of the courts in which questions of practice arise, when there are no statutory provisions or pro- visions by general rules of court that govern the case. Yet matters of practice come after a while to be governed absolutely by the custom of the courts, and what is found in any case to have been held by authoritative decisions to be the custom of the courts becomes thus the way in which discretion must go. Fisher V. Gould (1880), 81 IST. Y. 228, 232. Inherent power of procedure. — The powers of courts are either statutory or those which appertain to them by force of the com- mon law, or they are partly statutory and partly derived from immemorial usage, which latter constitutes their inherent juris- diction. They are organized for the protection of public and private rights and the enforcement of remedies. Presumptively, therefore, whatever judicial procedure is essential to enable courts to exercise their function is authorized. McQuigan v. D., L. & W. E. E. Co. (1891), 129 JST. Y. 50. Amendments of rules j construction. — The amendments of the rules of court are analogous to the .amendments of statutes and should receive the same construction. The rule of statutory con- struction — that when a statute is amended by enacting that it " is amended so as to read as follows," and then incorporating the changes and additions, with so much of the former statute as is retained, the part which remains unchanged is to be considered as having been continued the law from the time of its original enact- ment — applies to the amendments of the rules of court. Matter of Warde (1897), 154 N. Y. 342. Former rules; changes; revision. Practice rules.' — The first rules of the Court of Appeals, on its organization under the Constitution of 1846, were .adopted July 6, 1847, but being based on the old practice they were soon rendered obsolete by the enactment of the Code of Procedure, and Rules of Coukt. 5 on May 25, 1849, new rules were adopted, which have constituted the basis of all subsequent revisions. - These rules were nineteen in number, and are to be found in 2 N. Y. 573. In January, 1853, two additional rules were adopted, which, with the preceding rules as amended up to June, 1853, are given in 5 IST. Y. 575. On January 23, 1854, " Calendar Practice," which originally pre- ceded the rules, but which is now incorporated in Eule X, was established (15 E". Y. 658). A twenty-second rule was added in January, 18^8, which, with the other rules as they then existed, may be seen in 15 E". Y. 632. " Calendar Practice " was amended in June, 1859 (18 ~S. Y. 601) ; ,and in June, 1860, a rule pre- scribing the classes and order of preferred causes was adopted, and added as Eule XXIII (21 N. Y. 601). In January, 1862, three additional rules were adopted, of which Eule XXV was important in that it prohibited all judgments by default. See Maher v. Carman (1868), 38 IST. Y. 25. In 1870 this prohibition was limited to judgments of reversal. By January, 1864, the rules had increased to twenty-nine, and so continued until after the re- organization of the court under the constitutional amendment of 1869, which occurred on July 4, 1870. On the sixth of that month the " Calendar Practice " and rules were revised, and the latter reduced to twenty-three, which, with certain amendments, con- tinued in force to the revision of Octdber 28, 18i92, unchanged as to subject-matter, with the exception of Eule XXIII, which origi- nally prescribed the time for filing notices of argument, but which, in September, 1873, was supplanted by the rule on re- arguments. The rule on motions was amended in June, 1889, by changing the motion days from Tuesday to Monday. These rules have been printed with the court calendars, and are also to be found in various annotated editions of the Codes and in separate publications of court rules. On October 28, 1892, the rules were amended "by the court and ordered to take effect, as so amended, on January 1, 189'3. By that revision (on which the first edition of this book, ihzt of 1893, was based), Eule I of 1870, relating to the return, and the provisions of Rule XX of that year prescribing the classes and order of preferred causes, were abrogated, having been super- seded by the provisions of the Code of Civil Procedure. Eule X of 187'0, relating to number of counsel heard on ai^iiments, and 6 CouET OF Appeals Practice. Rule XVIII, in reference to exchanged causes, etc., were omitted in 1892 as unnecessary; Rule XII of 1870, on submission of causes, was joined with " Calendar Practice " in new Rule X ; and the rule in reference to making up the calendars (formerly Rule XXII, now XIX) was materially changed by providing for placing on the calendar, if so ordered, all causes in which returns are on file, although they may not have been noticed for argument. In consequence of the above changes the rules were reduced to twenty, arranged in a new order and given new numbers, which they still retain. The changes in the numbers of corresponding rules effected by the revision of 1892 are as follows : Cal Former Rules. Prac. I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. Present Rules. X. — L II. III. IV. V. VI. VII. VIII. — IX. X XI. Former Rules. XIV. XV. XVI. XVII. XVIII. XIX. XX. XXI. XXII. XXIII. Present Rules. XVI. XVII. XVIII. XII. — XIII. XIV. XV. XIX. XX. The changes effected in the Rules of Practice by the revision on which the second edition of this book is based, which revision, as appears from the above order of the court, was adopted October 22, 1894, to take effect January 1, 1895, consisted of the substitu- tion, for the former first paragraph of Rule VII, of provisions re- quiring the filing of copies of the case and the filing and serving of copies of the points on both sides, before the cause is placed on the day calendar for argument ; of an addition to Rule VIII, pro- viding for the submission of causes to judges absent at the time of argument, and of an addition to Rule XII, providing for the exchange, by stipulation, of causes not on the printed calendar with causes on the calendar. On December 2, 1895, Rule IV was amended by substituting the words " the Appellate Division of the Supreme Court " for the words " General Term," in ac- cordance with the changes introduced by the Judiciary Article of the Constitution of 1894, taking effect January 1, 1896. Rule XI, relating to motions and appeals from orders, was amended on June 19, 1896, and January 28, 1898. The latest amendments to the Rules of Practice were made on the 15th day of Dtecember, 1906, and went into effect on January 7, 190-7. Of the twenty-two rules, eleven were amended, but nearly all of these amendments are merely verbal in character, intended to make the meaning clearer rather than to change their scope or effect. Rules of Couet. 7 The amendment to Rule V now requires tliat all papers fur- nished to the court, if bound, shall be bound in light-colored paper, which can be legibly written upon. The amendments to Rule XI consist of additional provisions in reference to motions and appeals from orders. The amendment to Rule XII relates to the call of the calendar. It is now provided that any cause which is regularly called and passed without postponement by the court for good cause shown at the time of the call, instead of being placed upon all subsequent calendars, as if the return had been filed on the day when it was so passed, shall be stricken from the calendar. The amendments of 1906 are indicated by being placed in brackets. Rules for admission of attorneys and counselors. — The act em- powering the judges of the Court of Appeals " to establish such rules and regulations as they may deem proper in relation to the admission of persons hereafter applying to be admitted as at- torneys, solicitors and counselors in all the courts of this State," now embodied in the Judiciary Law and the Executive Law, was passed April 13, 1871 (Laws of 1871, chap. 486). In pursuance thereof, the judges, on May 1, 1871, adopted rules on the subject, which took effect June 1, 1871, and which are published in Volume 2 of Session Laws of 1871, p. 2194, and are also to be found in 10 Abb. Prac. CN. S.) 147, 508, in notes. Amended rules were adopted September 28, 1877, taking effect October 1, 1877. The most important feature of these amendments was the provision that applicants should be first examined and admitted as attorneys only, and should be again examined for admission as counselors two years thereafter. This division of admission was abolished in 1882, on May 4 of which year amended rules were adopted, which took effect July 1, 1882. These rules introduced the im- portant requirement that all applicants who were not graduates of a college or university, except those who had been admitted in another .State or country, should pass a regents' examination as a preliminary to the study of law. Rule II of 1882, in which this requirement was embodied, was amended in some of its details March 19, 1891, and as so amended took effect April 13, 1891, and was, together with the other rules of 1882, readopted by the court in the revision of October 28, 1892, which took effect January 1, 8 Court of Appeals Pkactice. 1893. The rules as then readopted are to be found in the first edition of this book. By chapter 760 of the Laws of 1894, approved May 23, 1894, section 56 of the Code of Civil Procedure, relating to the examina- tion and admission of attorneys and counselors, was amended so as to provide for the creation of a State Board of Law Examiners, to consist of three members to be appointed by the Court of Appeals, and for the conducting, under rules to be prescribed by that court, of a uniform system of examinations for admission to the bar throughout the State by such Board of Examiners. The act provided that it should go into effect January 1, 1895, but that the exiaminers might be appointed and rules for examination adopted immediately. This legislation necessitated important changes in the rules for the admission of attorneys and counselors, and amendments were consequently made and adopted by the Court of Appeals on October 22, 1894, to take effect January 1, 1895. These amended rules formed the basis of the second edition of this book. The principal changes introduced by them consist of regulations for the examinations to be conducted by the State Board of Law Ex- aminers, pursuant to section 56 of the Code as amended, pre- cedent to admission by the Supreme Court, with provisions for the compensation of the members of the board and in reference to the times and places of holding examinations ; a provision allowing the whole period of preliminary law study to be passed either in at- tendance at a law school or in serving a clerkship in a law of&ce, or partly in one of these methods and partly in the other, thus dispensing with the former requirement of at least one year's clerkship in a law office; the insertion of the requirement that persons who have been admitted in another State or country must remain therein one year as attorneys, to entitle them to examina- tion for admission here after one year's study of law in this State ; the addition of advanced English, algebra and economics to the subject of the regents' examination; permission to the regents to accept certain equivalents as substitutes for their examination, with the validation of certificates previously issued by the regents upon equivalents instead of an actual examination; and the right to examination in any judicial department of the State, instead of EuLEs OF Court. 9 the former restriction to the department of which the applicant was at the time a resident. By the terms of the amendment of 1894 to section 56 of the Code of Civil Procedure, the determination of the fact of com- pliance with the rules regulating admission to practice, precedent to examination for admission, was vested in the State Board of Law Examiners. On December 2, 1895, amendments were made to the rules for the admission of attorneys, the most important of which was an addition to subdivision 3 of Rule V, providing that regents' law student certificates should be deemed to take effect as of the date of the completion of the regents' examination. On December 1, 189'7, Rule VIII, relating to the State Board of Law Examiners, was amended. On December 20, 1906, the rules for the admission of attorneys and counselors were further amended, the amendments to go into effect on the 1st day of July, 1907. These amendments were in- tended to make more stringent the regulations regarding examina- tions and to establish a still higher standard of admission to the bar of this State. Rule III, as to prerequisites to admission on examination, has been amended so as to require that the evidence of good moral character of the applicant must be shown by the affidavit of two reputable persons of the town or city in which the applicant resides, one of whom must be a practicing attorney of the Supreme Court, and it is required that the affidavits shall set forth in detail the facts upon which such knowledge is based. Rule IV was amended by requiring that the applicant for ex- amination should have been an actual and not a constructive resi- dent of this State for at least six months preceding the date of the examination. Also that the applicant must not only have attended a law school but also must have successfully completed the pre- scribed course of instruction therein. A year's work in a law school was required, to consist of not less than thirty-two school weeks, exclusive of usual vacations, in which not less than twelve hours' attendance upon lectures or recitations of the prescribed course, to be given or conducted by regular members of the faculty, are required in each week. The standard of educational qualifi- cations was also raised by requiring that the applicant should have passed a satisfactory examination in second-year English instead 10 CouET OF Appeals Peactice. of in English composition and advanced English in addition to the other prescribed subjects, and under the equivalent of such exami- nation the course of study in institutions registered by the Regents of the University as maintaining a satisfactory academic standard was raised from three to four years. Eule VI, relating to proofs that the preliminary conditions prescribed by these rules have been complied with, was amended by requiring that the evidence must be to the effect that during the entire period of law clerkship excepting usual vacations, the applicant had actually been em- ployed by a practicing attorney of the Supreme Court as a regular law clerk and student in his law office, and under his direction and advice engaged in the practical work of the office during the usual business hours of the day. Rule X, permitting service in the late war with Spain to count as a part of the required period of study was repealed. In April,- 1908, Eule V was amended, among the amendments being the striking out of the provision permitting the procuring and filing of the regents' certificate within owe year after entering upon the study of the law, and retaining the single requirement of procuring and filing such certificate before entering upon the study of the law. The amendments of 1906 are indicated by being printed in brackets ; those of 1908 by being printed in italics. RULES OF PRACTICE. EULE I. Appellant to File Return — Effect of Omission. If the appellant shall not cause the proper return to be made and filed with the clerk of this court within the time prescribed by law (Code Civ. Pro. § 1315), the respondent may, by notice in writing, require such return to be filed within ten days after the service of the notice, and if the return be not filed in pursuance of such notice, the appel- lant shall be deemed to have waived the appeal. On an affidavit proving that the appeal was perfected, and the service of such notice, and a certificate of the clerk that no return has been filed, the respondent may enter an order with the clerk dismissing the appeal for want of prosecu- tion, with costs, and the court below may thereupon pro- ceed as though there had been no appeal. The return. Of luhat to consist; time within which must he filed. — The Code of Civil Procedure prescribes the contents of the return to the Court of Appeals, and that it shall be transmitted within twenty days after the appeal is perfected by giving and serving the requisite undertaking. The sections of the Code on the subject are as follows : What papers transmitted, and when. § 1315. Where an appeal is taken from a final judgment as prescribed in title second or third of this chapter, the appellant must, within twenty days after it is perfected, cause a, copy of the judgment-roll and of the case and notice of exceptions, if any, filed after the entry of judgment and a certified copy of the judgment* given thereon and of the notice of * The return to the Court of Appeals on appeal from a, judgment should contain a copy of the decisive order of the Appellate Division as well as of the judffment entered thereon. ' [11] 12 CouET OF Appeals Pkactice. [Rule 1 appeal to be transmitted to the appellate court by the clerk upon whom the notice of appeal was served. Where an appeal from an order or a part of an order, is taken as prescribed in title second, third and fifth of thii chapter, the appellant must, within the same time, cause a certified copy of the notice of appeal, of the order, and of the papers upon which the order was founded, to be transmitted to the appellate court by the same clerk. If the appellant fails so to do, the respondent may cause those papers to be so transmitted; and he is entitled to tax the expense thereof, as a disbursement, where he recovers costs. The clerk of the appellate court must file the papers so transmitted; and except where it is otherwise specially prescribed by law the appeal must be heard upon them. Appeal, how taken. § 1300. An appeal must be taken by serving, upon the attorney for the adverse party, as prescribed in article third of title sixth of chapter eighth of this act, and upon the clerk, with whom the judgment or order appealed from is entered by filing it in his office, a written notice to the eflect that the appellant appeals from the judgment or order, or from a specified part thereof. Upon an appeal to the court of appeals from an order of the Appellate Division, made upon an appeal from the Surro- gate's Court, the notice of appeal shall be filed with the clerk of the Surrogate's C!ourt. When notice of appeal to specify interlocutory judgment, etc. § 1301. Where the appeal is from a final judgment, or from a final order in a special proceeding, and the appellant intends to bring up, for review thereupon, an interlocutory judgment, or an intermediate order, he must, in the notice of appeal, distinctly specify the interlocutory judgment, or intermediate order, to be reviewed. Limitation of time to appeal. § 1325. An appeal to the court of appeals must be taken within sixty days after service upon the attorney for the appellant, of a copy of the judgment or order appealed from, and a written notice of the entry thereof. (Amended by Laws 1909, chap. 418.) When time cannot be extended. § 784. A court, or a judge, is not authorized to extend the time fixed by law, within which to commence an action; or to take an appeal; or to apply to continue an action, where a party thereto has died, or has incurred a disability; or the time fixed by the court within which a supple- mental complaint must be made, in order to continue an action; or an action is to abate, unless it is continued by the proper parties. A court, or a judge, cannot allow either of those acts to be done, after the expiration of the time fixed by law, or by the order, as the case may be, for doing it; except in a, case specified in the next section. Rule 1] The Rettjen. 13 Qualification of last section. § 785. Where a party, entitled to appeal from a judgment or order, or to move to set aside a linal judgment for error in fact, dies, either before or after this chapter takes effect, and before the expiration of the time within which the appeal may be taken, or the motion made, the court may allow the appeal to be taken, or the motion to be made, by the heir, devisee or personal representative of the decedent, at any time within four months after his death. Undertaking to perfect appeal. § 1326. To render a notice of appeal, to the Court of Appeals, effect- ual for any purpose, except in a case where it is specially prescribed by law, that security is not necessary, to perfect the appeal, the appellant must give a written undertaking, to the effect that he will pay all costs and damages, which may be awarded against him on the appeal, not exceeding five hundred dollars. The appeal is perfected, when such an undertaking is given, and a copy thereof, with notice of the filing thereof, is served, as prescribed in this title. Defects in proceedings may be supplied. § 1303. Where the appellant, seasonably and in good faith, serves the notice of appeal, either upon the clerk or upon the adverse party, or his attorney, but omits, through mistake, inadvertence, or excusable neglect, to serve it upon the other, or to do any other act, necessary to perfect the appeal, or to stay the execution of the judgment or order appealed from; the court, in or to which the appeal is taken, upon proof, by affidavit, of the facts, may, in its discretion, permit the omission to be supplied, or an amendment to be made, upon such terms as justice requires. Security may be waived. § 1305. An undertaking, which the appellant is required, by this chapter, to give, or any other act which he is so required to do, for the security of the respondent, may be waived by the written consent of the respondent. Deposit in lieu of undertaking. § 1306. Where the appellant is required by this chapter, to give an undertaking, he may, in lieu thereof, deposit with the clerk with whom the judgment or order appealed from is entered, a sum of money equal to the amount for which the undertaking is required to be given. The deposit has the same effect as filing the undertaking; and notice that it has been made has the same effect as notice of the filing and service of a copy of the undertaking. The court, wherein the appeal is pending, may direct the mode in which the money shall be kept and disposed of, during the pendency, or after the determination of the appeal. Undertaking must be filed. § 1307. An undertaking, given as prescribed in this chapter, must be filed with the clerk with whom the judgment or order appealed from is 14: Court of Appeals Peactice. [Eule 1 entered, except that upon an appeal to the court of appeals the under- taking must be filed with the clerk of the court wherein the original judgment or order was entered. No security necessary on appeal by the people, etc. § 1313. Upon an appeal taken by the people of the State, or by a State officer, or board of State officers, or a board of supervisors of a county, the service of the notice of appeal perfects the appeal, and stays the execution of the judgment or order appealed from, without an under- taking or other security. Id.; on appeal by a domestic municipal corporation. § 1311. Upon an appeal taken by a domestic municipal corporation, the service of the notice of appeal perfects the appeal, and stays the execution of the judgment or order appealed from, without an undertaking or other security; except that, where an appeal is taken, as prescribed in title second, third or fourth of this chapter, the court in or from which the appeal is taken, may, in its discretion, require security to be given. In that case, the form, nature and extent of the security, not exceeding that which is required in a. like case from a natural person, and the time and manner in which it must be given, must be prescribed by the order of the court; and the mayor, comptroller, or counsel to the corporation, may execute, in behalf of the corporation, an undertaking so required to be given. Case made in Appellate Division. § 1339. Where an appeal to the Court of Appeals, from a judgment, rendered by the Appellate Division of the Supreme Court, upon a ver- dict, subject to the opinion of the court, has been perfected, a case, con- taining a concise statement of the facts, of the questions of law arising thereupon, and of the determination of those questions by the Appellate Division, must be prepared and settled, by or under the direction of the court below, and annexed to the judgment-roll. An exception is not neces- sary, to enable the Court of Appeals to review the determination of a question of law, arising upon the verdict. A certified copy of the case must be transmitted to the Court of Appeals, instead of the case upon which the judgment of the court below was rendered. The court below, or a judge thereof, may extend the time, limited by law, within which the papers must be transmitted to the Court of Appeals, for the purpose of enabling the appellant to procure the case to be prepared or settled. Certification, or stipulation in lieu thereof. Section 1315, of the Code of Civil Procedure, prior to amend- ment in 18'9'0, required the return on appeal from a final judg- ment to consist " of a certified copy of the notice of appeal, of the judgment-roll, and of a case or notice of exceptions, if any," Rule 1] The Eetuen. 15 etc. At that time, the last paragraph of section 3301, as amended in 1882, provided that — Where the attorneys for all the parties interested, other than par- ties in default, or against whom a judgment or a final order has been taken, and is not appealed from, stipulate in writing that a paper is a copy of any paper whereof a certified copy is required by any pro- vision of this act, the stipulation takes the plac« of a certificate, as to the parties so stipulating, and the clerk is not required to certify the same, or entitled to any fee therefor. It was held in Dow v. Darragh (1883), 92 N. Y. 537, that the above provision of section 3301 was not intended to alter the pro- vision of section 1315, and of Rule I of the Court of Appeals, then in force, requiring the return to the Court of Appeals to be certified by the clerk of the court below, the court saying that parties " cannot by stipulation make up a case for this court until the law shall be further changed; the returns to this court should be made by a responsible officer under the sanction of his official oath, and his responsibility to the law; any other practice would be extremely unwise and mischievous." Shortly before the above amendment to section 3301, it was held by courts from which returns come to the Court of Appeals that no authority existed either in the parties or their counsel to compel the clerk to accept the return prepared for his certificate as it may be presented to him, but he has a duty to perform in seeing to it that the return is a proper one, and for that service he is entitled to charge the legal rate of fees, which is expressly allowed by section 3301 of the Code, and probably was intended as a check upon frivolous appeals. Chambers v. Appleton (1881), il ]Sr. Y. Supr. Ct. 534, quoting from Townsend v. Nebenzahl (Supr. Ct, Spl. T. 1880), 2 Civ. Proc. R. (McCarty), 342, in note. In Lewisohn v. Xiederwiesen (1886)., 40 Hun, 545, the Su- preme Court refused to hear an appeal, because the papers were not certified as required by section 1353 on appeal to the General Term — remarking that the observance of the duty imposed by that section was extremely important, its object undoubtedly be- ing to secure the presentation to the appellate court of the entire proceedings sought to be reviewed. 16 CouET OF Appeals Peactice. [Eule 1 Thereafter, in 1890, the above clause of section 1315 was amended as set forth on page 14 antej by changing " a certified copy of the notice of appeal, of the judgment-roll and of a case or notice of exceptions, if any," to " a copy of the judgment-roll and of the case and notice of exceptions, if any * * * and a certified copy of the judgment given thereon and of the notice of appeal." At the same time, section 3301 was amended, by adding to the paragraph thereof quoted the following words: And the paper so proved by stipulation shall be received by the clerks of all the courts and by the courts, and shall be used or filed with the same force and effect as if certified by a clerk of the court. Since this amendment of 1890 to section 3301 of the Code, although there has been no express determination by the court as to its effect, it has been the unquestioned practice of the clerk of the Court of Appeals to receive and file returns not certified by the clerk of the court below, when accompanied by a stipula- tion of attorneys under section 3301. But since section 1315 no longer requires " a certified copy of the judgment-roll and of the case and notice of exceptions, if any," but only requires " a copy " thereof, it has, in some instances, been claimed that the stipulation, authorized by section 3301 in the case of " a copy of any paper whereof a certified copy is required by any provision of this act," is not required for the judgment-roll and case and notice of exceptions, if any, but only for the judgment appealed from and the notice of appeal to the Court of Appeals, of which alone a certified copy is now required by section 1315. That is, in effect, that the copy of the judgment-roll and case and notice of exceptions, if any, mentioned in section 1315, need be neither certified nor stipulated, but should only purport to be a copy. If this is so, the anomaly is presented that while a copy of a case made under section 99'7 of the Code, and a notice of exceptions under section 994, need not, by force of sections 1315 and 3301, be either certified or stipulated on transmission to the Court of Appeals, a copy of a case made for appeal to the Court of Appeals directly, under section 1339, must be either certified or stipulated, since that section says that a certified copy of the case must be transmitted. Although the appeal papers should show that the Rule 1] The Retubw. 17 case therein was settled by the trial judge and that they are copies of the record, Brigg v. Hilton (18«5), 99 N". Y. 517, yet the "Code is silent as to how the evidence of these facts shall be au- thenticated for the Court ,of Appeals, except as above set forth. On appeals from orders, section ISl'S still requires " a certified copy of the notice of appeal, of the order, and of the papers on which the order was founded " to be transmitted to the Court of Appeals, and by force of section 3301, providing for stipulation in lieu of certification, all these papers, if not certified, must be stipulated to be copies. The stipulation should cover all the papers in the return. For stipulation in lieu of certification in Surrogate's Court proceedings, see Code, sections 2'5'67, 3302; in City Court of ISTew York cases, see section 3194a. It is probable that the omission of the word " certified " before the words " copy of the judgment-roll and of the case and excep- tions," in the amendment of 1890 to section 1315 of the Code of Civil Procedure, was owing to the fact that section 1353 of the Code required those papers to be certified on appeal to the General Term (now the Appellate Division of the Supreme Court), and therefore it was thought that a second certification of the same papers on a subsequent appeal from the General Term to the Court of Appeals was unnecessary. This would seem to be so, where the return to the Court of Appeals contains a copy of the original certification to the Appellate Division, or a copy of a stipulation in lieu thereof. Return; contents of. Same papers as helow. — The review in the Court of Appeals must be upon the same case as that on which the cause was de- cided below, and the court below cannot change the case so as to present the facts otherwise than as found, or insert therein ex- ceptions not taken on the trial or to its final decision. Johnson V. Whitlock (1866), 13 N. Y. 344. The Court of Appeals should be furnished with the same facts as those on which the Appellate Division based its judgment; Smith v. Grant (Supr. Ct. 1859), 17 How. Prac. 381; and can consider only errors al- leged to have been committed by the court below; it cannot base a reversal upon matter brought into the case subsequently by stipulation. People v. Dewey (1891), 128 N". Y. 606. 2 18 CouET OF Appeals Peactice. [Rule 1 The Court of Appeals is confined to and controlled by the record on appeal and cannot correct even an obvious error, con- tained in an exception appearing upon a record, vi^hich, if imper- fect, should have been corrected by the appellant. Schoepflin v. Coffey (1900), 162 N. Y. 12. Where, upon an argument in the Court of Appeals, a party presented an offer to withdraw his proposed amendments to the case below, which had been presented to the referee who had tried the action, after he had become disqualified, by the act of the party, to settle the case, the offer was not considered by the court, as it was not contained in the appeal papers and did not appear to have been presented to the court below. Leonard v. Mulry, (1883), 93 ISr. Y. 392. The Court of Appeals cannot disregard the record and look beyond its statement of the proceedings upon the trial, for the purpose of reviewing an alleged error of the court below in re- fusing the admission of evidence claimed on appeal to have been offered for a purpose other than that stated in the record. Corley V. McElmeel (1896), 149 N. Y. 228. The jurisdiction of the Court of Appeals is confined to a re- view of the determination actually made by the court below, and must be had upon the same papers which were before the Appel- late Division. N. Y. Cable Co. v. Mayor of K Y. (1887), 104 K Y. 1. Appeals, except only in cases of judgment of conviction for murder in the first degree, can only go to the Court of Appeals through the Appellate Division and the Court of Appeals has authority only to consider the case presented to and passed upon by the Appellate Division. A finding may not be stricken out pending an appeal to the Court, of Appeals. Ward v. Ward (1909), 133 App. Div. 73. Judgment of Appellate Division. — The judgment entered upon the decisive order of the Appellate Division in an action, although entered in the office of the county clerk, is nevertheless the judgment of the Appellate Division, for it is the judgment from which any appeal to the Court of Appeals must be taken. Bulkley v. Whiting Mfg. Co. (1910), 136 App. Div. 479. Under section 1339 of Code. — Unless the return on an appeal from a judgment rendered by the Appellate Division upon a Kule 1] The Eettjen. 19 verdict subject to the opinion of the Appellate Division includes a case containing a statement of facts and of the questions of law arising thereon and the determination of the Appellate Division upon such questions, prepared and settled as required by section 1339 of the Code, the cause cannot be heard in the Court of Ap- peals. It is not enough that the return contains the case as heard by the Appellate Division, with the judgment-roll. Cowenhoven V. Ball (1890), 118 JST. Y. 231; Reinmiller v. Skidmore (1875), 59 .N. Y. 661; People v. Featherly (1892), 131 N. Y. 597. The facts presented in such statement are the only ones to be con- sidered by the Court of Appeals ; and if the statement is defective in any respect it must be sent back to the court below for correc- tion. Jaycox V. Cameron (1872), 49 IST. Y. 645. Under section 999 of Code. — Where, after a verdict, a motion made pursuant to and upon the grounds stated in section 999 of the Code of Civil Procedure to set it aside is granted, an appeal to the Court of Appeals, from a judgment entered upon the ver- dict pursuant to an order of the Appellate Division reversing the order setting aside the verdict, should not be dismissed for failure to prepare and settle a case as required by section 1339 of the Code, but the appeal may be heard upon a case prepared and settled in the usual manner. South Bay Company v. Howey (1907), 190 K Y. 240. Amendments. — After a return has been filed in the 'Court of Appeals, the court below so far retains jurisdiction as to enable it to make such amendments as it shall deem proper, and when such an amendment has been duly filed with the clerk of the Court of Appeals it is to be regarded as part of the original return. Peterson v. 'Swan (1890), 119 K Y. 662. See Birn- baum V. May (1902), 170 IST. Y. 314. (See further as to amend- ment of return, under Rule II.) Where findings are incorrectly stated in case on appeal to General Term, Court of Appeals cannot correct. Binghamton Opera House Co. v. Binghamton (1898), 156 N. Y. 651. Omissions. — The Court of Appeals cannot review an order which does not appear in the record and in regard to which no papers are found therein, although the notice of appeal to that court assumes its existence. Zapp v. Miller (1888), 109 IST. Y. 51. 20 Court of Appeals Peactice. [Eule 1 An appellant cannot take advantage or complain of the omis- sion from the return or case before the Court of Appeals, of a paper which it was his duty to insert. Struthers v. Pearee (1873), 51 ]Sr. T. 365. Upon appeal from an order affirming an order for a new tax- ation of costs, the papers referred to in the notice of appeal and in the Special Term order were not before the Court of Appeals, but the papers contained a copy of a memorandum which was be- fore the Greneral Term, containing an extract from the judgment and the costs as taxed, and endorsed by the attorneys for the re- spective parties "Approved and assented to, as and for papers on appeal." It was held, the appellant being the same as in the court below, that the memorandum might be presumed to contain all considered by his coixnsel material to present the question in- tended to be raised, and it showing nothing which alone or vsdth other matter in the case made the appellant's objection intel- ligible, the order appealed from was aiErmed. CreshuU v. Mullen (1887), 104 K T. 660. Where a General Term order recited the facts of an appeal from the order of Special Term considered therein, it was as- sumed that such an appeal was taken, although no notice thereof was contained in the case. Struthers v. Pearee (1873), 51 !N'. T. 365 (supra). Upon an appeal from an order reducing the fees charged by a referee appointed to sell, the return did not contain the papers in the action, but consisted of the referee's report. of sale and the order appealed from. The rejDort stated that it was made " in partition; " and it was held that this statement, being uncontra- dicted, was sufficient to show that the sale was in a partition suit. Hobart v. Hobart (1881), 86 K Y. 636. Where the return in an action tried by the court contained no statement of facts found by the trial court, as required by the Code, but only a statement of facts signed by the presiding justice of the General Term which heard the case on appeal, the appeal to the Court of Appeals was dismissed, in Essex County Bank V. Russell (1864), 29 N. Y. 673. Where the return in a cause tried by the court or a referee contains no case showing that any question was raised or any exceptions taken, and no findings of the court or report of referee, Eule 1,] The Ketuen. 21 with exceptions, the Court of Appeals has no jurisdiction, and no appeal lies. Smith v. Starr (1877), 70 N. Y. 155. And an appeal, in such a case from an order dismissing the complaint does not bring up for review the proceedings on the trial. Id. Where the court below has received and acted upon papers im- perfect in that the case did not appear to have been settled or signed by the trial judge or referee as required by section 997 of the Code, still when such papers constitute the return to the Court of Appeals, that court must receive them as sufficient. Eeese v. Boese (1883), 92 N. Y. 632. But where the record on appeal in a case tried by the court contained a paper headed " re- quests to find," also another paper containing exceptions to as- sumed refusals of the requests, but there was no " note upon the margin " of the requests as required by section 1023 of the Code, or elsewhere, showing how, if at all, the propositions were dis- posed of, or that the attention of the court had been called to them, it was held that such assumed requests could not be con- sidered in determining the appeal. Harris v. Van Wart (1884), 96 IST. Y. 642. And upon appeal from a judgment entered upon a referee's report, the court cannot, in the absence of findings or requests to find upon particular questions of fact, look into the evidence to see if facts were proved which, if proved, would sub- vert the judgment. Holden v. Burnham (1875), 63 IST. Y. 74. Improper insertions. — When an order, which the Court of Ap- peals has no jurisdiction to review, and the papers on which such order was granted by the court below, are incorporated in the return, they will be stricken out on motion. Smith v. Grant (1857), 15 ]Sr. Y. 590. It is improper to insert in a return on an appeal from a judg- ment entered after a second trial any of the proceedings at, or ease made on, the first trial; and if this is done, such improper portions will be stricken out by the Court of Appeals on motion. Ferguson v. Ferguson (Ct. App. 1852), 7 How. Prac. 217; Bissel V. Hamlin (1859), 20 K Y. 519; Wilcox v. Hawley (1864), 31 N". Y. 648. (See, also, as to defective returns, cases cited under Rule II.) Appeal perfected; undertaking; time prescribed for filing return. The provisions of section 1326 of the Code, requiring an under- taking for costs to perfect the appeal, apply to appeals from 22 CouET OF Appeals Peactice. [Kule 1 orders as well as to appeals from judgments ; Cowdin v. Teal (1876), 67 ISr. Y. 581; an appeal to the Court of Appeals from an order, as from a judgment, is, until the undertaking is given, a mere nullity, and so is ineffectual to affect the finality of the decision below; Ferris v. Tannebaum (N. Y. Com. PL, 1891), 15 N. Y. Supp. 2'95 ; and the courts have no power to dis- pense with the undertaking. Architectural Iron Works v. City of Brooklyn (1881), 85 N. Y. 652. Where, however, notice of appeal was served in good faith, without giving an undertaking for costs, in reliance upon an order of the court below dispensing therewith, the Court of Appeals held that the neglect should be deemed excusable, and that the omission might be supplied under section 1303 of the Code. Id. Where an appellant to the Court of Appeals has perfected his appeal from a judgment which is thereafter amended, the Su- preme Court is without jurisdiction to amend the notice of ap- peal so as to include the amended judgment or to allow a further undertaking to be filed, but that power, as well as the whole power of amendment under section 1303 of the Code in cases appealed to the Court of Appeals, lies wholly with that court. Moreover, an amendment of such notice of appeal will not be allowed even by the Court of Appeals if it would allow an appeal where the time to take the same has expired. Bulkley v. Whiting Mfg. Co. (1910), 136 App. Div. 479. Surety's liability is limited to costs of appeal to Court of Ap- peals. Bennett v.' Am. Surety Co., 73 App. Div. (1902) 468. The appeal is perfected, so that the twenty days within which the return must be filed begin to run, when notice of appeal, with a proper undertaking, is given, notwithstanding the sureties are not excepted to and do not justify and the undertaking is not ap- proved until afterwards. Wade v. De Leyer (1875), 63 jST. Y. 318; Thompson v. Blanchard (1850), 2 K Y. 561. But see Polito V. Pitriello (1909), 196i K Y. 517. The appeal may be perfected by service of the requisite under- taking at any time before the time to appeal expires, and it need not accompany the notice of appeal. Section 1334, Code; Blake V. Lyon Mfg. Co. (1878), 75 N. Y. 611. But the notice of ap- peal, when served before the undertaking, as it may be under sec- tions 1300 and 1334 of the Code, does not become effectual for Rule 1] The Retuen. 23 any purpose until the undertaking has been given. Section 1326, Code; Raymond v. Richmond (1879), 76 N. Y. 106. While the Court of Appeals may permit the undertaking to be filed nunc pro tvm,c on proper terms, it will not do so where the amount involved is so small that a continuance of litigation would consume most of it; Hunter v. Hatfield (1878), 73 iS'. Y. 600; 7 Wkly. Dig. 191 ; but where no undertaking has been filed or served, the court below has no power to grant an order allowing the appellant to perfect his appeal by filing an undertaking; Nelson v. Tenney (1889), 113 N. Y. 616; and has no power to stay proceedings under the judgment appealed from. Gruilfoyle V. Pierce (1897), 22 App. Div. 131. In Culliford v. Gadd (1892), 135 K Y. 632, it appeared that in pursuance of a stipulation which recited that an undertaking given on appeal to the Court of Appeals had been canceled, an order had been entered in the Court of Appeals which gave the plaintiff leave to file " another undertaking to perfect the appeal " within five days and provided that the new undertaking should have, when filed, the same force and effect as if it had been filed and served when the first undertaking was given, and that if not filed as specified, the appeal should be dismissed. A new under- taking not having been filed, the appeal was dismissed. Another appeal was thereafter taken and perfected. On motion to strike the case from the calendar, it was held that the case was placed by the stipulation and order on the same footing as if no imdertaking had been given, and that the appellant had the right, within the statutory time for appealing, to take and perfect another appeal, and the motion was, therefore, denied. Where an executor, upon his appeal to the Appellate Division from an order of a surrogate adjudging him guilty of contempt, gives the undertaking required by section 2579 of the Code, pro- viding that he will surrender himself in obedience to the decree, to the custody of the sheriff of the proper county, and, upon an affirmance of the order and his appeal therefrom to the Court of Appeals, procures by order a stay conditional upon his giving the undertaking for costs in that court required by section 1326 of the Code, his appeal to the Court of Appeals is, upon giving the latter undertaking, perfected, and, as perfected, operates by the express provisions of section 1310 of the Code as a stay of all 24 Court op Appeals Peaotioe. [Eule 1 proceedings designed to enforce the order appealed from. And it seems that if, in such a case, the appellant, upon an appeal to the Court of Appeals gives the required undertaking for costs in that court, his appeal is perfected, and all proceedings are stayed, without it being necessary to resort to a stay by order. Matter of Pye (1897), 21 App. Div. 266. See, also, Grin v. Little, 43 Misc. Eep. 421. An undertaking, in the usual form, upon an appeal to the Court of Appeals taken jointly from a judgment against two defendants severally liable, has the same effect as though each, defendant had appealed separately, and the sureties had signed a separate under- taking upon each appeal ; and, under the provision in such under- taking that " if the said judgment appealed from, or any part thereof, be affirmed, the said appellants will pay the amount," the sureties are liable if the judgment is affirmed against one appel- lant, tbougb reversed as to the other. Seacord v. Morgan (1867), 4 Abb. Prac. (N. S.) 249; 3 Keyes, 636. When jurisdiction of Court of Appeals attaches. After notice of appeal has been served and the proper under- taking given, the Court of Appeals is so far possessed of the cause as to be competent to make any necessary order, although the return has not been filed. Adams v. Fox (1863), 27 N. Y. 640. Thenceforward the jurisdiction of the Court of Appeals attaches and the authority of the court below, except as specially preserved, ends, so tbat, e. g., it cannot grant a motion to compel the appel- lant to file a new undertaking; but such motion should be made in the Court of Appeals. Parks v. Murray (1888), 109 IST. T. 646. In all matters pertaining to the appeal itself, and to the proper hearing thereof, tbe Court of Appeals has jurisdiction, and also in regard to all applications which by statute may be made to that court after the taking of an appeal; but, as to all other applications, the case is regarded as still pending in the court of original jurisdiction, and such applications should 'be made to that court. People ex rel. Hoffman v. Board of Educa- tion (1894), 141 K y. 86; Bulkley v. Whiting Mfg. Co. (1910), 136 App. Div. 479. A motion, made by an attorney for appellant who had been substituted after appeal to the Court of Appeals, for an order directing the former attorneys to deliver to him the Eule 1] The Eettjen. 25 papers in the case, is not properly made in the Court of Appeals, but should be made in the court below. Id. The pendency of an appeal in the Court of Appeals, does not prevent a motion in the court below for a new trial on the ground of newly discovered evidence, and, in such case, an order to trans- mit the return on appeal to the court below is unnecessary. Henry V. Allen (189'5), 147 IST. Y. 346. The pendency of an appeal in the Court of Appeals is no bar to a motion in the Appellate Division for such amendment of an order or judgment as it may see fit to make. Birnbaum v. May (1902), no K Y. 314. For the purposes of a motion in the Court of Appeals to dis- miss appeal, an appeal is to be regarded as pending when notice of appeal has been duly served and an undertaking given and the appellant has not abandoned the appeal. .Stevens v. Glover (1880), 83 N. Y. 611. But until the appeal is perfected by the filing of the requisite undertaking, there is no appeal pending in the Court of Appeals, although a notice of appeal may have been served; and it will not entertain a motion to dismiss appeal, or take any action in the cause, except to strike it from the calendar. Kaymond v. Richmond (1879), 76 IST. Y. 106, supra; Benedict Mfg. Co. V. Thayer (1880), 82 IST. Y. 610. This distinction, however, does not appear to be always en- forced, and motions to dismiss appeal for failure to give under- taking have been entertained. See e. g., Reese v. Boese (1883), 92 E". Y. 632; Nichols v. McLean (1885), 98 K Y. 458; JSTelson V. Tenney (1889), 113 W. Y. 616; People ex rel. Blakeslee v. Com'rs of Land Ofiice (1892), 133 IST. Y. 616. An order dis- missing the appeal, rather than one simply striking from the calendar, is desirable where a return has been filed, as it leads to the issuance of a remittitur, which takes the record back to the court below, with instructions to proceed in the cause. See Dresser v. Brooks (1850), 2 IST. Y. 559. Default and dismissal under the rule. The appellant must see to it, at his peril, that the return is actually filed in due time, or procure an extension of the time. An appeal, regularly dismissed for want of a return, will not be reinstated unless the appellant establishes a clear case of diligence 26 CouET OF Appeals Peactice. [Rule 1 and shows that the inexcusable default of the clerk below or an un- avoidable accident has prevented the filing of the return, or the extension of the time to file it. Spoore v. Fannan (1858), 16 ISr. Y. 620. A judge of the Supreme Court has no jurisdiction to extend the time to file the return on appeal to the Court of Appeals, ex- cept in cases under section 1339 of the Code (p. 14, ante) ; the power conferred by that section is limited to appeals in cases therein mentioned. Mead v. Smith (Ct. App. 1883), 18 Wkly. Dig. 221. Default waived. — ^ Where the respondent has omitted to avail himself of the neglect of the appellant to procure the return within twenty days after the appeal was perfected, until after the return has been made, and has, after the filing of the return, noticed the cause for argument, the objection that the return was not made in time is waived. Beecher v. Conradt (Ct. App. 1855), 11 How. Prac. 181. Appeal must have been perfected. — The filing of a return to the Court of Appeals cannot be compelled until the appeal is fully perfected. Hence, a dismissal under Rule I will not hold where it appears that the justification of sureties executing the under- taking on the appeal is pending and undetermined in the court below. Polito v. Pitriello (1909), 196 N. Y. 517. Opening default. — A default taken on failure to file return will not be opened where an examination of the return which would be filed, if allowed, shows no good grounds for the appeal. Schenck v. Bengler (1887), lOS jS^. Y. 630; S. C, sub nom. Schenck v. Ringler, 11 Northeast. Eep. 383. But unless the re- spondent can show some delay or inconvenience from failure to file the return, a default taken therefor under the rule should be relieved against upon terms, where it appears the appeal is brought in good faith. Waterman v. Whitney (Ct. App. 1853), 7 How. Prac. 407. Imperfect return. — An ex parte dismissal under the rule can only be had where there is a total failure to serve any return witJiin the time required. Where an imperfect return has been filed, the respondent should proceed, on notice, either under Eule II or by motion to the court, as the case may require, for a fur- ther or corrected return, with an alternative demand for the dis- Rule 1] The Eetuen. 27 missal of the appeal. See Bowers v. Tallmadge (1861), 23 N, Y. 1&6; Bliss v. Hoggson (1881), 84 N. Y. 667. Costs. — When an. appeal is dismissed with costs, general costs follow, whether the appeal is from an order or a judgment. White V. Anthony (1861), 23 N. Y. 164; Brown v. Leigh (1872), 50 N. Y. 427. Practice of the clerk's office. Filing return. — A return containing the papers required by section 1315 of the Code, certified by the clerk of the court below, under his hand and seal, to be copies of the originals on file in his office, or accompanied by a stipulation in writing, in lieu of such certification, as provided by section 3301 of the Code, under the hands of the several attorneys required to join therein; or, on appeal from a final judgment, a return in which the judgment ap- pealed from and the notice of appeal to the Court of Appeals are certified or stipulated as above to be copies of originals on file and the judgment-roll and the case and notice of exceptions, if any, purport to be copies of the originals thereof by having been so certified or stipulated to the Appellate Division of the Supreme Court (except a copy of a case under section 1339 of the Code which must be certified or stipulated to the Court of Appeals) will be filed by the clerk of the Court of Appeals on receipt thereof at his office, and the cause will thereupon be entered. The fee for filing a return is fifty cents. (Code, § 3300.) As the cause and appearances are entered on the records of the Court of Appeals from the notice of appeal in the return, it is important that the title of the cause and the names of attorneys should be correctly and fully stated therein. A note of issue is not required. Appeals in civil causes from judgments and from orders not entitled to be heard under Rule XI, go upon the calendar, when made up, in the order and by the date of filing the returns, except as changed by ri^ht to preference. It is therefore advantageous to transmit returns to the clerk as early as possible, to be filed and await the ordering of a new calendar, when notices of argument should be served and filed. (See Rules XIV and XIX.) A notice of argument filed before the return is filed is of no effect ; nor is one filed before an order for a new calendar is pro- 28 'Court of Appeals Peactice. [Rule 1 mulgated, except in criminal cases (see Enle IX), and appeals from orders entitled to be heard under Rule XI. Dismissing appeal. — The clerk, on receiving from the re- spondent's attorney the affidavit prescribed by the rule, will, if the return has not been filed, make a certificate to that effect, and enter, in an established form, the proper order (which need not be drafted by the attorney), and furnish a certified copy thereof. The fee for certificate, order and copy, is one dollar and fifty cents. Clerk's fees. § 3300. The olerk of the Court of Appeals is entitled, for the services specified in this section, to the following fees: For filing a notice of appeal to that court, and all the papers transmitted therewith, fifty cents. For filing any other paper, ten cents. For drawing an order, twenty cents for each folio. For entering an order, twenty cents ; and for each folio more than two, ten cents. For drawing a judgment, twenty-five cents; and for each folio more than two, ten cents. For entering a judgment, twenty-five cents; and for each folio more than two, ten cents. For a certified copy of an order, record, or other paper, entered or filed in his ofiice, ten cents for each folio. For engrossing a remittitur, ten cents for each folio. For a certificate, other than that a paper, for the copying of which he is entitled to a fee, is a copy, twenty-five cents. For sealing any paper, when required, fifty cents. Return in criminal causes. The Code of Criminal Procedure provides as follows: Transmission of return. § 532. Upon the appeal being taken, the clerk, with whom the notice of appeal is filed, must, within ten days thereafter, without charge, transmit a copy of the notice of appeal and of the judgment-roll, as follows: 2. If it [the appeal] be to the Court of Appeals, to the clerk of that court. (See, also, § 485, subd. 8, under Rule IV.) Dismissal for want of return. § 534. The court may also, upon like motion [of the respondent upon five days' notice], dismiss the appeal, if the return be not made, as provided in § 532 unless, for good cause, the time to make such return be enlarged. (As amended by Laws 1897, chap. 427.) Rule 1] The Retuen. 29 Jurisdiction of Court of Appeals. The provisions of the Constitution as to the jurisdiction of the Court of Appeals are as follows: After the last day of December, one thousand eight hundred and ninety- five, the jurisdiction of the Court, of Appeals, except where the judgment Is of death, shall be limited to the review of questions of law. No unanimous decision of the Appellate Division of the Supreme Court that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court, shall be reviewed by the Court of Appeals. Except where the judgment is of death, appeals may be taken, as of right, to said court only from judgments or orders entered upon decisions of the Appellate Division of the Supreme Court, finally determining actions or special proceedings, and from orders granting new trials on exceptions, where the appellants stipulate that upon affirmance judgment absolute shall be rendered against them. The Appellate Division in any department may, however, allow an appeal upon any question of law which, in its opinion, ought to be reviewed by the Court of Appeals. The Legis- lature may further restrict the jurisdiction of the Court of Appeals and the right of appeal thereto, but the right to appeal shall not depend upon the amount involved. The provisions of this section shall not apply to orders made or judgments rendered by any General Term before the last day of December, one thousand eight hundred and ninety-five, but appeals therefrom may be taken under existing provisions of law. [Art. 6, § 9.] The provisions of the Code of Civil Procedure on the subject, are as follovsrs: Jurisdiction in civil actions. § 190. The Court of Appeals has exclusive jurisdiction to review upon appeal every actual determination made prior to the last day of December, eighteen hundred and ninety-five, at a, general term of the Supreme Court, or hy either of the superior city courts, as then constituted, in all cases in which, under the provisions of law existing on said day, appeals might be taken to the Court of Appeals. From and after the last day of December, eighteen hundred and ninety-five, the jurisdiction of the Court of Appeals shall, in civil actions and proceedings, be confined to the review upon appeal of the actual determinations made by the Appellate Division of the Supreme Court in either of the following cases, and no others : 1. Appeals may be taken as of right to said court, from judgments or orders finally determining actions or special proceedings,* and from orders granting new trials on exceptions, where the appellants stipulate that upon affirmance, judgment absolute shall be rendered against them. * Code Civil Proc, § 1997, the final determination of the rights of the parties to a special proceeding instituted by State writ is styled a final order. % 2550. The final determination of the rights of parties to a special proceed- ing in a Surrogate's Court is styled indifferently, a final order or a final decree. 30 CouET OF Appeals Peacticb. [Eule 1 2. Appeals may also be taken from determinations of the Appellate Divis.ion of the Supreme Court in any department where the Appellate Division allows the same, and certifies that one or more questions of law have arisen which, in its opinion, ought to be reviewed by the Court of Appeals, in which case the appeal brings up for review the question or questions so certified, and no other; and the Court of Appeals shall certify to the Appellate Division its determination upoh such questions. Limitations, exceptions and conditions. § 191. The jurisdiction conferred by the last section is subject to the following limitations, exceptions and conditions: 1. No appeal shall be taken to said court, in any civil action or pro- ceeding commenced in any court other than the Supreme Court, Court of Claims, County Court, or a Surrogate's Court, unless the Appellate Division of the Supreme Court allows the appeal by an order made at the term which rendered the determination, or at the next term after judgment is entered thereupon and shall certify that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals. 2. No appeal shall be taken to said court from a, judgment of aflSrm- ance hereafter rendered in an action to recover damages for a personal injuryt or to recover damages for injuries resulting in death, or in an action to set aside a judgment, sale, transfer, conveyance, assignment or written instrument, as in fraud of the rights of creditors, or in an action to recover wages, salary or compensation for services, including expenses incidental thereto, or damages for breach of any contract therefor, or in an action upon an individual bond or individual undertaking on appeal, when the decision of the Appellate Division of the Supreme Court is unanimous, unless such Appellate Division shall certify that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals, or unless in case of its refusal to so certify, an appeal is allowed by a judge of the Court of Appeals.* t § 3343, sub. 9 : A " personal injury " includes libel, slander, criminal conversation, seduction and malicious prosecution; also an assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff, or of another. See McNamara v. Goldan (1909), 194 N. Y. 322. * § 1310. * * * In a case, specified in subdivision two of section 191 of this act, a party aggrieved, upon presenting to the court proof by affidavit that he intends to apply to the Appellate Division, rendering such decision, for leave to appeal to the Court of Appeals, and in case such Appellate Division shall refuse such leave, them that such party intends to apply to a judge of the Court of Appeals to be allowed to appeal to said Court of Appeals, and proof that an undertaking given, as prescribed in this chapter, has been filed with the clerk with whom the judgment appealed from is entered, shall be entitled to an order staying all proceedings to enforce such judgment, until the granting or refusal of such leave to appeal by such Appellate Division or a judge of the Court of Appeals. The party desiring to make such application must do so at the same term or at the term of the said Appellate Division next succeeding that at which judgment of aflirmance was rendered and notice of entry thereof served upon the party aggrieved, and Rule 1] The Return. 31 3. The jurisdiction of the court is limited to a review of questions of law. 4. No unanimous decision of the Appellate Division of the Supreme Court that fhere is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court, shall be reviewed by the Court of Appeals. (Amended by Laws 1896, chap. 559 and Laws of 1898, chap. 574; subd. 2 by Laws 1900, chap. 592.) Review of interlocutory judgment or intermediate order. § 1316. An appeal, taken from a final judgment, brings up for review, an interlocutory judgment, or an intermediate order which is specified in the notice of appeal, and necessarily aflfeots the final judgment; and which has not already been reviewed, upon a separate appeal therefrom, by the court or the term of the court, to which the appeal from the final judgment is taken. The right to review an interlocutory judgment, or an intermediate order, as prescribed in this section, is not affected by the expiration of the time, within which a. separate appeal therefrom might have been taken. Appeal from order granting new trial. § 1318. Where a judgment from which an appeal is taken, is reversed upon the appeal, and a new trial is granted, an appeal cannot be taken from the judgment of reversal; but upon an appeal from the order granting a new trial, taken, as prescribed by law, the judgment of reversal must also be reviewed. Appeal from final judgment after afSrmance of interlocutory judgment. § 1336. Where final judgment is rendered in the court below, after the aifirmance, upon an appeal to the Appellate Division of the Supreme Court, of an interlocutory judgment; or after the refusal by the Appellate Division of a, new trial, either upon an application made in the first instance, at a term thereof, or upon an appeal from an order of the special term, or of the judge before whom the issues, or questions of fact, were tried by a jury; the party aggrieved may appeal directly from the final judgment to the Court of Appeals, notwithstanding that it was rendered at a special term, or at a trial term, or pursuant to the direction contained in a referee's report. But such an appeal brings up, for review, only the determination of the Appellate Division of the Supreme Court affirming the interlocutory judg- ment or refusing the new trial. Review in Court of Appeals. § 1350. Where final judgment is taken, at a special term or trial term, or pursuant to the directions of a referee, after the affirmance, upon an appeal to the Appellate Division of the Supreme Court of an interlocutory ■judgment; or after the refusal by the Appellate Division of a new trial, either upon an application, made, in the first instance, at a term of the in case said Appellate Division refuses such application, then such party shall have thirty days, from and after service of a copy of the order of said Appellate Division denying such application, with notice of entry, in which to apply to a judge of the Court of Appeals, to be allowed to so appeal. 32 Court of Appeals Peagtice. [Eule 1 Appellate Division, or upon an appeal from an order of the special term, or of a judge, before whom the issues, or questions of fact, were tried by a jury; an appeal to the Appellate Division from the final judgment brings up, for review, only the proceedings to take the final judgment, or upon which the final judgment was taken, including the hearing or trial of the other issues in the action, if any. If an appeal is taken, to the Court of Appeals, from the determination of the Appellate Division upon the appeal from the final judgment, the determination of the Appellate Division, afiinn- ing the interlocutory judgment or refusing the new trial, may, at the election of either party, be reviewed thereupon. If the respondent elects to bring it up for review, he may take a cross-appeal therefrom, notwithstanding the expiration of the time to take an original appeal therefrom. Appeal in summary proceedings. § 2261. An appeal cannot be taken to the Court of Appeals, from a final determination of the Appellate Division of the Supreme Court, upon an appeal [in a summary proceeding to recover the possession of real property], unless the latter court by an order, made at the term of the Appellate Division where the final order is made, or the next term thereafter, allows it to be taken. Jurisdiction dependent upon stwtute. — The Court of Appeals has no jurisdiction to entertain an appeal unless it is conferred by statute; Szuchy v. Hillside C. & I. Co. (1896), 150 Is". Y. 219; and this rule applies to special proceedings of a criminal nature ; People ex rel. Commissioners of Charities v. CuUen (1896), 151 ISr. Y. 54; and to criminal actions. People v. Malone (1902), 169 IST. Y. 568. The Court of Appeals has no jurisdiction except such as is con- ferred by Constitution or statute. The right of appeal in civil actions and proceedings is governed by sections 190 and 191 of the Code of Civil Procedure, and in criminal actions and pro- ceedings by sections 515 to 533 of the Code of Criminal Pro- cedure. These provisions are exclusive, and unless they authorize an appeal the Court of Appeals has no jurisdiction. Matter of Jones (1905), 181 N. Y. 389. Jurisdiction not conferred by stipulation. — ■ The Court of Ap- peals cannot be empowered by stipulation of parties to entertain an appeal not within its statutory jurisdiction. Hoes v. Edison Gen. Elec. Co. (1896), 150 N. Y. 87. Enlargement of jurisdiction. — It seems that the provisions of the Constitution regulating the jurisdiction of the Court of Ap- Rule 1] The Retukn. 33 peals and providing that the Legislature may further restrict it, do not prohibit the Legislature from enlarging the jurisdiction of the court, save only in those special cases which are expressly -withdrawn from its review. Hence, the Legislature had power to enact a statute (such as L. 1895, ch. 601, § 20), the effect of which was to provide for a final review in the Court of Appeals of a determination by a city magistrate in the city of New York convicting a party as a disorderly person, not theretofore review- able in that court. People ex rel. Commissioners of Charities v. Cullen (1897), 153 W. Y. 629. Limitation of time to appeal. — In applying the amendment of section 1325 of the Code of Civil Procedure by chapter 418 of the Laws of 1909, which took effect September 1, 1909, and which provides that an appeal to the Court of Appeals must be taken within sixty days after service of a copy of the judgment or order appealed from, it was held, in the case of a judgment served be- fore the amendment took effect, that the appellant- had sixty days after September 1, 1909, within which to appeal, unless the year that he otherwise would have had would expire within that period, in which ease his time is limited by the expiration of that year. Coffey V. Burke (1909), 196 K Y. 65. Review of legislative apportionment. — The right of the Court of Appeals to review the action of the Supreme Court in cases relating to a legislative apportionment (see Constitution, art. 3, § 5) proceeds from its general appellate jurisdiction. In the ab- sence of express legislative authority it cannot, in a proceeding attacking the validity of an apportionment, entertain an appeal from an order of the Appellate Division affirming an order of the Special Term denying an application for a eommon-law writ of mandamus, unless it affirmatively appears on the face of the order that it was not made in the exercise of discretion ; and the juris- diction of the court should not be strained when the effect of an adverse decision might be to throw a general election about to be held into inextricable confusion and chaos. Matter of Sherill v. O'Brien (1906), 186 N. Y. 2. While the Constitution does not expressly confer jurisdiction upon the Court of Appeals to review an act of apportionment, that court has such power by virtue of its general jurisdiction to review actual determinations of the Appellate Division, provided 3 34 CouET or Appeals Peactice. [Rule 1 the constitutionality of the act and the procedure for its review on appeal present a question of law. Matter of Sherill v. O'Brien (1907), 188 N. Y. 185. Criminal cases. — The Court of Appeals cannot review the facts on appeal in a criminal case, except where the judgment is of death; nor can it review any questions relating to the sufficiency of the evidence, where the Appellate Division has affirmed a con- viction by a unanimous decision. People v. Helmer (1898), 154 ]Sr. Y. 596; People r. Miller (1902), 169 K Y. 3.39; People v. Adams (1903), 176 N. Y. 351; People v. DeGarmo (1904), 179 K Y. 130; People v. Ferone (1909), 196 K y. 522; People v. Thompson (1909), 198 JST. Y. 396. It is argued, but not decided, in People v. Gaffey (1905), 182 ~N. Y. 257, that the limitations upon appeals to the Court of Ap- peals prescribed by the Constitution have no application to criminal cases; but in People v. Maggiore (1907), 189 X. Y. 514, it is decided that as the constitutional provision as to the con- clusiveness upon questions of fact of a unanimous affirmance by the Appellate Division is unqualified it precludes a review of such questions by the Court of Appeals as well in criminal as in civil causes. A motion to dismiss an indictment, although not specifically mentioned in section 485 of the Code of Criminal Procedure, is embraced in the general provisions thereof and is included in and becomes a part of the judgment-roll ; and an order of the trial judge denying such a motion, made upon the ground that the de- fendant had been compelled to testify against himself before the grand jury, is under section 517 reviewable by the Appellate Division, and under section 519, subdivision 3, by the Court of Appeals. People ex rel. Hummel v. Trial Term (1906), 184 ]Sr. Y. 30. Return in criminal causes. — Where it appears from the record on appeal that the only authentication of a charge to the grand jury is the affidavit of a. newspaper reporter that he made and published a copy of a paper given him by the court stenographer purporting to be a transcript of the charge, an alleged error therein will not be considered by the Court of Appeals. People v. Glen (1903), 173 K Y. 395. Amendment of criminal return. — The trial judge has power. Rule 1] The Return. 35 iu a criminal case, on motion made upon notice to the defendant, to amend the record on appeal by annexing thereto a copy of an exhibit, received in evidence upon the trial and afterward lost, where there is no doubt as to the substantial accuracy of the copy and the judge acts, not only upon the affidavits presented, but also upon his own recollection. People v. Flanigan (1903), 174 N. Y. 356. Jurisdiction of criminal appeals. — The limitation upon appeals contained in section 9, article 6 of the Constitution, applies to civil cases only, and the jurisdiction of the Court of Appeals to hear appeals in criminal cases rests entirely upon section 519 of the Code of Criminal Procedure, which extends to an appeal from an order of the Appellate Division reversing a judgment of con- viction and granting a new trial. People v. Miller (1902), 169 K Y. 339. Erroneous designation of judgment as order. — "Where a judg- ment of conviction was affirmed by the Appellate Division by a paper which, although named an order, is in form a judgment affirming the judgment of conviction, and the notice of appeal therefrom to the Court of Appeals refers to it as an order, but the judgment is sufficiently identified from the date and reference made thereto in the notice of appeal, such defect may be treated as a clerical error not affecting the validity of the notice as an ap- peal from the judgment. People v. Canepi (1905), 181 X. Y. 398. Intermediate orders in criminal case. — Upoia an appeal from a judgment of conviction, the rulings upon intermediate orders or proceedings forming a part of the judgment-roll are reviewable by the Appellate Division, and its determinations thereon ^are review- able by the Court of Appeals. People v. Canepi (1905), 181 E". Y. 398. Unanimous decision of Appellate Division. — A quorum of four justices, holding an Appellate Division of the Supreme Court, are in contemplation of law the Appellate Division, and their unani- mous vote of affirmance is a unanimous decision within the mean- ing of the Constitution and the Code. Harroun v. Brush Elec. Light Co. (1897), 152 N. Y. 212. A judgment of the Appellate Division reciting that one of the judges sat but did not vote, that the remaining four judges con- 36 Court of Appeals Practice. [Eule 1 curred, and tbat a judgment, wliich was rendered in an action for personal injuries " be affirmed," is mot a unanimous affirmance, precluding a review thereof by tlie Court of Appeals. Warn v. K Y. C. & H. R R R Co. (1900), 163 N. Y. 525. A decision of the Appellate Division in which all of the justices concur is a unanimous decision, although part of the justices con- cur in result only; and when the order and judgment entered upon such decision do not show that it was unanimous, the Appellate Division, at a subsequent term, although composed in part of different justices, may, upon proper and sufficient evidence of the fact, amend the order and judgment so as to show that the decision was unanimous. MacArdell v. Olcott (1907), 189 K Y. 368. To give a decision of the Appellate Division the effect of unanimity, the record on appeal must show affirmatively that the decision was in fact unanimous. Kaplan v. IST. Y. Biscuit Co. (1896), 151 ]Sr. Y. 171; Matter of Marcellus (1900), 165 I^. Y. 70. Code, section 190, subdivision 1; Appeals as of right; final judgments in actions and orders in special proceedings. — The provision of the Code, allowing appeals as of right to the Court of Appeals from " judgments or orders finally determining actions or special proceedings," refers only to final judgments in actions and final orders in special proceed- ings, and does not allow an appeal to the Court of Appeals from an order in an 'action, even although it is one which ends the litigation. An action is determined, within the meaning of the Code, only when the issues of fact or law, if any, have been tried and decided and the final judgment entered, which judicially settles the controversy between the parties. Van Arsdale v. King (1898), 155 IT. Y. 325. It is not enough that the action or special proceeding be ended by the judgment or order; it must be determined on the merits. Van ISTostrand v. Van ITostrand (1908), 125 App. Div. 718. Orders granting new trial. — The right of the Court of Ap- peals to review an order which reverses a judgment in an action and grants a new trial, where the appellants stipulate for judg- ment absolute in the event of affirmance, does not extend to orders granting new hearings in special proceedings, and hence Bule 1] The Retdkn. 37 doea not extend to an order reversing a decree of a Surrogate's Court and directing a new hearing. Matter of Gibson (1909), 195 K Y. 466. Time to appeal. — The fact that a notice of entry of an order of the Appellate Division refers to the final entry in the office of the county clerk, vrithout referring to the preliminary entry in the office of the clerk of the Appellate Division, does not ren- der the notice insufficient to limit the time to appeal from the order. Guarantee Trust Co. v. P. R. & N. E. R. R. Co. (1899), 160 E". T. 1. No right of appeal conferred by section 1325 of the Code. — Section 1325 of the Code of Civil Procedure, providing that an appeal to the Court of Appeals from an order must he taken within sixty days after service of a copy of the order and notice of its entry, confers no right of appeal, but merely limits the time within which appeals must be taken where the right exists. Steamship Richmond Hill Co. v. Seager (1899), 160 K Y. 312. Non-appealaile orders. — An order of the Appellate Division, affirming an order of Special Term directing the permanent re- ceiver of an insolvent domestic corporation, appointed by a final judgment in an action brought by the Attorney-General for the dissolution of the corporation, to pay, out of the fund in his hands, the claim of a creditor of the corporation made upon an application by the creditor in the action for dissolution, is not an order finally determining an action or special proceeding, and hence is not appealable as of right to the Court of Appeals. People V. Am. Loan & Trust Co. (1896), 150 N. Y. 117; People V. St. Nicholas Bank (1896), 150 IST. Y. 563. An appeal does not lie to the Court of Appeals from an order of the Appellate Division which reversed an order of a County Court denying, without passing upon the merits, a motion to con- firm an inquisition in proceedings de lunatico inquirendo, and remitted the proceedings to the County Court for the exercise of the discretion conferred upon it as to the confirmation of the in- quisition and the appointment of a committee. Matter of Wells (190-2), 169 N. Y. 595. An order setting aside orders directing the examination of the plaintiff as a party before trial and dismissing the complaint, being an order made in an action and not a final order in a spe- 38 CouET OF Appeals Peactice. [Eule 1 cial proceeding, is not reviewable in the Court of Appeals. Murphy v. Walsh (1902), 169 K Y. 595. Interlocutory judgment. — An interlocutory judgment direct- ing the trustees of a corporation in dissolution to make a final accounting is not rendered a final judgment and so appealable to the 'Court of Appeals by the insertion of a provision that the plaintiff recover costs. Osborn v. Cardeza (1904), 180 N. Y. 69. Foreclosure. — An order determining the petition of a claimant for payment from a receiver appointed in a pending action for the foreclosure of a corporation mortgage is not a final order in a special proceeding, and hence is not appealable to the Court of Appeals as a matter of right. Guarantee Trust Co. v. P. E. & ~S. E. E. E. Co. (1899), 160 K Y. 1. A judgment of foreclosure, while in other respects interlocu- tory, is final for all purposes of review. Nutt v. Cuming (1898), 155 ISr. Y. 310. A judgment which, although finally determining certain mat- ters in controversy, orders an accounting before a referee, is an interlocutory, not a final judgment, and is not appealable to the Court of Appeals as matter of right. McKeown v. Officer (1891), 127 N. Y. 687. Remittance for further consideration helow — intermediate orders. — When an appeal from the aflirmance of a final judgment also brings up for review an order dismissing an appeal from orders on the ground that they were not " intermediate " within the meaning of section 1316 of the Code of Civil Procedure, and, consequently, not reviewable, and the Court of Appeals decides that the orders were intermediate and involve qiiestions which the appellant was entitled to have considered below, but which the Court of Appeals is without power to consider, it will reverse the order of dismissal and remit the case to the Appellate Division for consideration of the questions presented by the appeal from the orders. Fox v. Matthiessen (1898), 155 N. Y. 177; Taylor V. Smith (1900), 164 K Y. 399. Final order on intermediate accounting by general assignee. — ■ An order of the Appellate Division affirming, with modifications as to the priority of payment of claims and as to commissions and costs, an order of the Special Term confirming the report of a referee in a proceeding under section 11 of the General Assign- Eiule 1] The Retuen. 39 ment Act (L. 1877, ch. 466), for the settlement of an assignee's account, allowing the account, adjusting the claims of creditors and directing payment thereupon, relieving the assignee from lia- bility for all matters included in his account, and releasing his sureties to that extent, is a final order in a special proceeding and therefore appealable as of right to the Court of Appeals, although the proceeding was intermediate in the sense that the assigned estate was not then ready for final distribution. Matter of Talmage (1899), 160 N. y. 512. Final order on intermediate accounting by executors. — An order of the Appellate Division, affirming an order or decree of a Surrogate's Court settling an intermediate account of executors and awarding commissions thereon, in a proceeding for that pur- pose, and determining the rights of the parties to the extent that it actually adjudged them, is an order finally determining a special proceeding, and therefore appealable as of right to the Court of Appeals. Matter v. Prentice (1899), 160 N. Y. 568. Removal of city magistrate. — A proceeding in the Appellate Division for the removal of a city magistrate of the city of New York is not a special proceeding, and an appeal therein does not lie to the Court of Appeals as matter of right. Matter of Droege (1909), 197 1ST. Y. 44. Admission to har and disbarment. — Proceedings for admis- sion to the bar and for removal or suspension from practice are, by reason of their unique conditions, deemed to be special pro- ceedings, and final orders of the Appellate Division therein are appealable as matter of right. ]\ratter of Cooper (1860), 22 K Y. 67; Matter of Droege (1909), 197 N. Y. 44. Attorney's lien. — An application by attorneys in a proceeding in a Surrogate's Court for an accounting, to vacate the satisfaction of a decree rendered therein, on the ground that it was executed in disregard of their lien for services and by collusion, is a special proceeding, and an order of the surrogate vacating the satisfaction is a final order in that proceeding, reviewable by the Court of Appeals. Matter of Eegan (1901), 167 N. Y. 338. Where, in a proceeding to enforce an attorney's lien, the Ap- pellate Division reverses an order of Special Term appointing a referee to ascertain and report the value of the petitioner's serv- ices, and in addition denies the application, thus depriving the 40 Court of Appeals Peactice. [Eule 1 petitioner of his lien, it becomes a final order in a special pro- ceeding and is appealable to the Court of Appeals. Matter of King (1901), 168 N. Y. 53. An order of the Appellate Division reversing an order of the Surrogate's Court, which, upon the petition of an attorney for the contestant, continued a proceeding for a compulsory account- ing by an administratrix who had made a secret and collusive settlement with his client and had procured the client's agree- ment to withdraw his objections and to consent that her account be allowed as filed, for the purpose of allowing the attorney, who claimed a lien upon and recovery to which his client would have been entitled on the accounting, to establish such lien, which order of the Appellate Division denied and dismissed the petition, ordered the objections to the account withdrawn and the account as filed approved, is a final order in a special proceeding, and therefore appealable to the Court of Appeals. Matter of Fitz- simons (1903), 174 K Y. 15. An application by the attorney of record of the plaintiff in an action, to vacate a satisfaction of judgment executed by the client, and to conforce the judgment by execution to the extent of the attorney's lien thereon, based upon facts wholly distinct from those passed upon on the trial of the action, is a special pro- ceeding and not a motion in the action; and, hence, an order of the Appellate Division, afirrming an order granting the applica- tion, is appealable to the Court of Appeals, as an order finally determining a special proceeding. Peri v. N. Y. Central E. R. Co. (1897), 152 K Y. 521. Contempt. — ^A proceeding to punish the defendant in an action for contempt, to enforce a civil remedy, instituted by an order to show cause, is a proceeding in the action and not a special pro- ceeding; and an order made therein, even if final, not being in a special proceeding is not appealable as of right to the Court of Appeals. Ray v. N. Y. Bay Extension R. R. Co. (1898), 155 N. Y. 102 ; Jewelers Mer. Agency v. Rothchild (1898), 155 N. Y. 255; Douglass v. Halstead (1899), 161 IST. Y. 621; Holton v. Robinson (1901), 167 IST. Y. 616; and this applies to an order on a motion to punish the defendant for contempt in failing to pay alimony under a judgment of divorce. Clark v. Clark (1909), 195 N. Y. 612; but an order punishing the wilful dis- Riile 1] The Eetubn. 41 obedience of an injunction, constituting a criminal contempt, is appealable to the Court of Appeals. People ex rel. Negus v. Dwyer (1882), 90 N. Y. 402; People ex rel. Steams v. Marr (1905), 181 N. Y. 463. Proceedings taken under section 915 of the Code of Civil Pro- cedure to punish a witness for contempt in failing to give testi- mony for use in another State constitute a special proceeding, and the final order therein, from which an appeal will lie to the Court of Appeals, as a matter of right, is that which punishes or re- fuses to punish the witness. No appeal lies to the Court of Ap- peals from an order which merely directs the witness to answer specified questions and is, therefore, interlocutory in its char- acter. Matter of Strong v. Randall (1904), 17'7 N. Y. 400. Order of restitution. — Even if an order of restitution of the Appellate Division, made under section 1323 of the Code of Civil Procedure, is to be deemed a final order in a special proceeding, which is doubtful, it is a discretionary order, and, consequently, cannot be reviewed by the Court of Appeals in the absence of a certificate. Merriam v. Wood & Parker Lith. Co. (1898), 155 K Y. 136. Certiorari. — ^An order of the Appellate Division which not only reverses an order of Special Term quashing a writ of certiorari to review an assessment, but also reinstates the writ and remifts the proceedings to the Special Term for its determination upon the merits, is not an order finally determining a special pro- ceeding, and hence is not appealable as of right to the Cburt of Appeals. People ex rel. Bronx Gas Co. v. Barker (1898), 155 ISr. Y. 308. Habeas corpus. — Although, by force of section 20'58 of the Code of Civil Procedure, no appeal lies even to the Appellate Division from an intermediate order in habeas corpus, still if on such an appeal the Appellate Division renders a final order, the latter order is reviewable by the Court of Appeals. People ex rel. Duryee v. Duryee (1907), 188 N. Y. 440. Order appointing commissioners. — An order of the Appellate Division, affirming an order of the Special Term appointing com- missioners to ascertain the damages of a property owner by rea- son of a change of grade of a village street, although made in a special proceeding is not a final order, and hence is not appeal- able as of right. Matter of Grab (1898), 157 N. Y. 69. ■i2 CouET OF Appeals Peactice. [Rule 1 Public Service Commission. — The Public Service Commission is entitled to prosecute an appeal to the Court of Appeals from an order of the Appellate Division which annulled its determina- tion denying an application by a railroad company for permission to construct and operate an extension of its road. People ex rel. South Shore Trac. Co. v. Willcox (1909), 196 N. Y. 212. Municipal investigation. — An order made by a justice of the Supreme Cburt, and affirmed by the Appellate Division, de- termining, as a result of the investigation, a summary investi- gation into the financial affairs of a village instituted by tax- payers and freeholders, under the General Municipal Law (L. 1892, ch. 68o, section 3), is reviewable as a final order in a special proceeding. Matter of Taxpayers of Plattsburg (1898), 157 ]sr. y. 78. Interlocutory judgment. — An appeal does not lie to the Court of Appeals from an interlocutory judgment unless allowed by the Appellate Division; and, where not so allowed, such an appeal must be dismissed. Anderson v. Daley (1899), 159 X. Y. 146. Dissolution of corporation. — A proceeding for the voluntary dissolution of a corporation under the statute is a special pro- ceeding, and a final order made therein is reviewable as of right by the Court of Appeals. Matter of Hulbert Pro's & Co. (1899), 160 K Y. 9. Execution against person. — An order of the Appellate Divi- sion, reversing an order vacating an execution against the person of the judgment debtor, is not a final order in a special proceed- ing. 'Steamship Eichmond Hill Co. v. Seager (1899), 160 X. Y. 312. Final order under Railroad Laiv. — An order of the Ap- pellate Division directing the Board of Railroad Commissioners to issue a certificate of public convenience, in a proceeding for that purpose, is a final order in a special proceeding, and, in the absence of any provision in the Railroad Law giving the right to appeal to the Court of Appeals, is appealable imder section 190 of the Code so far as questions of law are concerned. ^Matter of Wood (1905), 181 K Y. 93. Presentment of grand jury. — The Court of Appeals has no power to review an order of the Appellate Division affirming an order of a County Court denying a motion to strike from its Rule 1] The Return. 43 minutes a presentment of a grand jury censuring public officers. Matter of Jones (1905), 181 IST. Y. 389. Order vacating service of summons. — An order of the Appel- late Division, which reverses an order of Special Term denying a motion to set aside the service of summons in an action and grants the motion, is not appealable as of right. Kramer v. Buffalo Union Furnace Co. (1909), 196 K. Y. 532. Order refusing to bring in party. — ^An order of the Appellate Division, which affirms an order denying a motion to bring in an additional party, is not appealable as of right. Elmore & Hamilton Contracting Co. v. The State (1909), 196 N. Y. 531. Appointment of trustee. — An order of the Appellate Division, affirming an order of the Special Term which vacated a former order appointing a trustee under a will in place of a deceased trustee, is a final order in a special proceeding and, therefore, may be appealed from to the Court of Appeals. Matter of Earn- shaw (1909), 196 N. Y. 330. Examination before action. — A proceeding for the examination of witnesses before the commencement of an action, under the Act to Prevent ^Monopolies (L. 189-7, chap. 383), is not a special proceeding; and an order of the Appellate Division affirming an order vacating an order for such an examination granted ex parte by a justice of the Supreme Court under section 5 of the act, is not an order finally determining a special proceeding and is not appealable to the Court of Appeals. Matter of Attorney-General (1898), 155 X. Y. 441. Election Law. — An order of the Appellate Division of the Supreme Court finally determining a proceeding by mandamus under section 114 of the Election Law (L. 1896, chap. 909), for the recount of ballots objected to as marked for identification or rejected as void, and presenting a question of law for review, is appealable as of right to the Court of Appeals as an order finally determining a special proceeding. People ex rel. Feeny v. Board of Canvassers (1898), 156 ^. Y. 36. Foreclosure of corporation mortgage. — Orders of the Appellate Division, reversing orders of the Special Term, made upon a motion to determine whether the fund in question was covered by the lien of a corporation mortgage then being foreclosed by an action in which a sequestration receiver and a foreclosure re- ceiver had been appointed, settling the account of the foreclosure 44 CouET OF Appeals Peactice. [Rule 1 receiver and refusing to direct the attorney for the sequestration receiver to pay over to the former money in his hands, are not final orders in a special proceeding, but are orders in the fore- closure action, and therefore not appealable as matter of right. W. Y. Security & Trust Co. v. Saratoga Gas & El. L. Co. (1&98), 156 K Y. 645. Condemnation proceeding. — An order of the Appellate Di- vision, reversing an order of the Special Term vacating a final order and judgment in a condemnation proceeding, is not a final order in the special proceeding, vrithin the meaning of the 'Con- stitution and section 190 of the Code, and therefore is not appeal- able as of right. City of Johnstown v. Wade (1898), 157 ]Sr. Y. 50. Judicial accounting.— An order of a Surrogate's Court, deny- ing an application to open the decree entered in a proceeding for the final judicial settlement of an executor's accounts and to require a further accounting is not an order "finally deter- mining " the special proceeding, and therefore an order of the Appellate Division affirming the same is not appealable as of right to the Court of Appeals. Matter of Small (1899), 158 ]Sr. Y. 128. Orders on judicial sales. — Orders requiring the purchaser to complete, or relieving him from, his purchase at a sale in fore- closure or partition are, when they present solely questions of law, reviewable by the Court of Appeals as being final orders in special proceedings. Holme v. Stewart (1898), 155 N. Y. 695; Smith V. Secor (1898), 157 IST. Y. 403; Kingsland v. Fuller (1899), 157 ISr. Y. 507; Merges v. Eingler (1899), 158 K Y. 701; Trustees of Church v. Mullowney (1909), 164 W. Y. 578; Parish v. Parish (1903), 175 IST. Y. 181. An order deciding an application, made on the foot of the judgment in foreclosure, to compel a defaulting purchaser on a foreclosure sale to execute a deed of the property bid off by him thereat, to a purchaser on a resale, is not reviewable by the Court of Appeals as matter of right. Knickerbocker Trust Co. v. Oneonta By. Co. (1910), 197 W. Y. 391. In the case of private judicial sales, such as a sale by a receiver appointed by the court, the question of compensation to a person relieved from completing his purchase rests in the discretion of Rule 1] The Retuen". 4:5 the court, and its determination thereon is not reviewable by the Court of Appeals. People v. N. Y. B. L. Banking Co. (190^7), 189 N. Y. 2313. Surplus proceedings. — A proceeding for the disposition of sur- plus moneys arising from a mortgage foreclosure is a special proceeding, and an appeal from an order of distribution therein lies to the Court of Appeals without permission. Velleman v. Eohrig (1908), 193 N". y. 439. New trial on exceptions. — ^An order granting a new trial on exceptions, within the meaning of the provision which authorizes appeals, as of right, to the Court of Appeals, from orders of the Appellate Division " granting new trials on exceptions, where the appellants stipulate that upon affirmance judgment absolute shall be rendered against them," may be founded on an exception filed, as provided by the Code of Civil Procedure (section 1022), to a decision which does not state separately the facts found. Otten V. Manhattan R. Co. (1896), 150 IST. Y. 395. Under the Constitution, the Court of Appeals has no jurisdic- tion to review an appeal from an order granting a new trial on exceptions unless accompanied by a stipulation for judgment absolute in case of affirmance, even though the Appellate Division has allowed the appeal and certified a question of law for review. Mundt V. Glokner (1899), 160 N. Y. 5Yl; N. Y. C. & H. R. R. Co. V. State of K Y. (1901), 166 K Y. 286. An order and judgment of the Appellate Division reversing an interlocutory judgment and granting a new trial is not review- able by the Court of Appeals upon the ground that the appeal is from an order granting a new trial upon a motion made upon exceptions under section 1001 of the Code of Civil Procedure, where the record fails to disclose that the Appellate Division in any way disposed of or decided the exceptions. Townsend v. Van Buskirk (1900), 162 W. Y. 265. Assessment. — Order of Appellate Division affirming an order to vacate an assessment is a final order and reviewable by Court of Appeals. In re Munn, 165 ]S^. Y. 149, 58 IST. E. 881. An order of the Appellate Division, affirming an order appoint- ing commissioners in a railroad condemnation proceeding is not appealable as of right. IST. Y., Lack. & West. Ry. Co. v. Erie R. R. Co. (1899), 161 K Y. 616. 46 CouET OF Appeals Peactice. [Eule 1 Attachment. — Appeal does not lie from an order by the Appel- late Division denying a motion to vacate vrarrants of attachment. Hammond v. Nat. Life Ass'n, 168 ]S:. Y. 262, 61 N. E. 244. Direction to guardian. — An order directing resumption of cer- tain payments by a guardian of the property of an infant to the guardian of the person is not reviewable by Court of Appeals. Matter of White, 95 App. Div. 104. Order disynissing appeal. — ISTo appeal can be taken to the Court of Appeals from an order of the Appellate Division dismissing an appeal from the judgment below, but the proper practice is to enter a judgment of dismissal upon the order and then appeal from such judgment. Stevens v. Central Xat. Bank (1900). 162 N. Y. 253. An order of the Appellate Division dismissing an appeal from an order amending a judg-ment is not appealable to the Court of Appeals. Van i\"^os,trand v. Van J^ostrand (1908), 125 App. Div. 718. Incomijetent person. — An order charging the committee of an incompetent person with a certain sum upon the report of a referee appointed to take and state the account, is a final order in a special proceeding. Matter of Chepman (1901), 162 !N^. Y. 456. Alimony. — A reversal, with denial of the application, by the Appellate Division of an order of the Special Term granting an application to modify a decree for alimony by reducing the amount, is reviewable by the Court of Appeals, since it is either a final order in a special proceeding or a final judgment in an action. "Wetmore v. Wetmore (1900), 162 IST. Y. 503; Livingston V. Livingston (1903), 173 N". y. 377. Insolvent debtor. — A motion under section 2182 of the Code of Civil Procedure to cancel a jiidgment against a discharged insolv- ent debtor is a special proceeding, and a final order thereon is reviewable as of right by the Court of Appeals. Duer v. Hunt (1900), 162 N. Y. 605. Order setting aside assessment for local improvement. — An order in a special proceeding instituted by a property-iowner to review an assessment levied for a local improvement, which sets aside the assessment not only as to him but as to all the property- owners, is a final order determining the proceeding and is appeal- able to the Court of Appeals. Matter of :Munn (1900), 165 X. Y. 149. Rule 1] The Retuen. 47 Order in proceeding under Condemnation Law. — An order and judgment entered on a decision of the Appellate Division which not onl^y reversed an order and judgment of the Special Term condemning water rights of the defendant in favor of the plaintiff, in a proceeding instituted under the Condemnation Law (Code Civ. Proc, § 3357 et seq.), but dismissed the proceeding, are final and appealable. Village of Champlain v. McCrea (1901), 165 N. Y. 264. Order reversing judgment condemning private interests in water rights for village purposes is reviewable by Court of Ap- peals. Champlain v. McCrea, 165 N. Y. 264; Matter of King, 168 ]Sr. Y. 53. In a condemnation proceeding under a statute which provided that " in case of a new appraisal the second report shall be final and conclusive," it was held that this did not apply where the first report was set aside by the Special Term and new commis- sioners appointed ; but that such first report must be regarded as no appraisal and no report, and the report of the new commis- sioners as an original report, whose confirmation was reviewable by the Appellate Division and the Court of Appeals. Matter of Daly (1907), 189 K Y. 34. Physical examination. — An order affirming an order denying a motion to vacate an order directing the plaintiff in an action for damages for personal injuries to appear before a person named for personal and physical examination, is not appealable as of right to the Court of Appeals. Taylor v. Anglo-Swiss Condensed Milk Co. (1900), 165 N. Y. 611. Non-appealable orders. — An appeal does not lie to the Court of Appeals from an order affirming an order denying a motion to set aside and vacate a judgment of foreclosure and sale (Hull v. Wilcox [1901], 166 JST. Y. 598) ; nor from an order afiirming an order denying a motion for a new trial and to set aside a verdict (Wiedeman v. Everard [1901], 166 K Y. 598); nor from an order afiirming an order denying a motion to be made a party to the action ( S toutenburgh v. Davison [1901], 166 iS^. Y. 636); such order being only reviewable upon appeal from the judg- ment. Com. Bank of Rochester v. Spencer (1879), 76! K Y. 155. Order denying motion for new trial. — An order of the Appel- late Division denying a motion for a new trial made upon excep- 48 CouET OF Appeals Peactice. [Rule 1 tions pursuant to section 1001 of the Code, intermediate the interlocutory and final judgments, is not appealable as matter of right. Young v. Gilmour (19'01), 167 IST. Y. 500. Order resettling judgment. — ^An order resettling a judgment is not an order finally determining a special proceeding and is not appealable as of right to the Court of Appeals. Whalen v. Stuart (1909), 194 N. Y. 495. Attacliment. — ISTo appeal lies to the Court of Appeals from an order denying a " motion herein to vacate and set aside the war- rants of attachment and judgment in this action " mthout the allowance of the Appellate Division, since it is an order in an action and not in a special proceeding. Hammond v. National Life Assn. (1901), 168 N. Y. 262. Forfeited recognizance. — An appeal does not lie as of right to the Court of Appeals to review an order denying a motion to vacate a judgment entered upon a forfeited recognizance. People V. Clark (1901), 168 IST. Y. 676; People v. Baker (1901), 168 K Y. 677; People v. Eussell (1902), 171 N. Y. 655. Conditional order not final. — Aa order of the Appellate Divi- sion m^ade in certiorari proceedings imposing as a condition for the reinstatement of relator, a member of the police force of the city of ISFew York, that he should stipulate not to claim back salary from the date of his dismissal from the force, but contain- ing no provision as to the disposition of the proceedings if the stipulation was not given, does not finally determine the proceed- ings in the absence of the stipulation and is not appealable to the Court of Appeals. People ex rel. Hart v. York (1902), 169 K Y. 452. Modified final order. — A Special Term order which modifies and corrects a final order in a special proceeding thereby becomes the final order in that proceeding, and an order of the Appellate Division reversing it is reviewable by the Court of Appeals. Matter of Board of Education (1902), 169 IST. Y. 456. Failure to enter judgment on order of affirmance. — An order of the Appellate Division which reversed a determination of the Special Term setting aside a verdict on the ground of newly-dis- covered evidence and granting a new trial, and affirmed the judg- ment of the trial court entered upon the verdict, is not reviewable upon the merits by the Court of Appeals; and an appeal there- Eiile 1] The Eetuen. i9 from, even if allowed by the Appellate Division and question certified, must be dismissed when the record does not disclose the entry of a judgment of affirmance, nor any appeal therefrom, if it had in fact been entered. Reiss v. Town of Pelham (1902), 170 ]Sr. Y. 54. See, also, Moore v. Bd. of Education (1909), 195 N. Y. 601. Appeal from judgment of reversal on demurrer, — ^A judgment of the General Term reversing an interlocutory judgment of the Special Term on demurrer and holding the demurrer well taken and directing a final judgment unless the plaintiff should amend within a certain time does not, when perfected by entry of a final judgment dismissing the complaint on failure of the plain- tiff to amend, become a final and actual determination by the General Term upon the issue raised by the demurrer appealable to the Court of Appeals; but the proper mode of bringing the question to the Court of Appeals is by an appeal through the Appellate Division from the judgment so entered. Abbey v. Wheeler (1902), 170 K Y. 122. A fijial judgment entered pursuant to section 1222 of the Code of Civil Procedure upon an order of Special Term sustaining a demurrer and dismissing the complaint upon the merits after a reversal by the late General Term of a final judgment overruling the demurrer, the order of reversal giving the plaintiff leave to amend, which he failed to do, but containing no direction for final judgment in case of his default, is not appealable to the Court of Appeals. Leonard v. Barnum (1901), 168 N. Y. 41. Interlocutory judgment — review of. — When an appellant seeks to review an interlocutory judgment he should give notice in his notice of appeal of his intention to review the determination of the Appellate Division affirming such interlocutory judgment and cause the judgment of the Appellate Division to be returned with the record so that it can be reviewed by the Court of Appeals. An appeal in form as from an interlocutory judgment entered in the Trial Court does not bring up for review an affirmance of such judgment by the Appellate Division. Waldo v. Schmidt (1910), 198 K". Y. 193. Interlocutory judgment — direct appeal — section 1336. — When the Appellate Division reverses part of a final judgment and so modifies it in other respects as to make it an interlocutory 4 50 CouET OF Appeals Peactice. [Rule 1 judgment, the judgment thereafter rendered by the Special Term upon the report of a referee appointed under such interlocutory judgment is not appealable directly to the Court of Appeals, under section 1336 of the Code, authorizing such an appeal where a final judgment is rendered in the court below after afErmance, upon an appeal to the Appellate Division, of an interlocutory judgment. Hollister v. Simonson (1902i), 170 N. Y. 357. Where the Appellate Di\'ision reverses an interlocutory judg- ment and an order at Special Term is subsequently entered thereon, the unsuccessful party must go through the formality of another appeal to the Appellate Division, though in case of an affirmance he can appeal directly to the Court of Appeals from the judgment of the ' Special Term. McXamara v. Goldan (190-9), 194 K Y. 315. It is only in the case of an affirmance by the Appellate Divi- sion of an interlocutory judgment that an appeal from the final judgment of .Special Term thereon may be taken directly to the Court of Appeals, since the provision of the Code on the subject (§ 1336) mentions only affirmances and does not include r:- versals. Will v. Barnwell (1910), 197 ISF. Y. 298. Denial of new trial — direct appeal — section 1336.— The provision of section 1336 of the Code that, after the refusal by the Appellate Division of a new trial, the party aggrieved may appeal directly to the Court of Appeals from the final judgment, although rendered at Special Term, applies to a judgment upon the verdict entered after the reversal by the Appellate Division of an order granting a new trial. The reversal of such an order is a refusal of a new trial within the meaning of the section. South B:ay Co. v. Howey (1907), 190 N. y. 240; Girling v. City of K^ew York (1910), 197 N. Y. 302. Review of intermediate orders. — Section 1301 of the Code re- lates to all appeals provided for in chapter 12 and authorized the review by the Court of Appeals, on appeal from a final judg- ment in an action or a final order in a special proceeding, of those intermediate orders which are specified in the notice of appeal. N. Y., L. & W. Ev. Co. v. Erie R. R. Co. (1902), 170 K Y. 448. Surrogate' s decree. — An order of the Appellate Division cannot bo reviewed by the Court of Appeals upon an appeal taken di- Rule 1] The Return. 51 rectly from a decree of a Surrogate's Court made after and in accordance with such order. Matter of Union Trust Co. (1902), 172 N. Y. 494. Amendment of judgment. — An order reversing an order de- nying a motion to amend a judgment is not appealable to the Court of Appeals as a matter of right. Peggo v. Dinan (1902), 172 N. Y. 605. Accounts of receiver. — An order settling the accounts of a re- ceiver of rents and profits in an action for the foreclosure of a mortgage, being an order in an action, is not appealable to the Court of Appeals. Frankenstein v. Hamburger (1902), 172 N. Y. 609. Order discharging receiver. — Where real estate has been sold under a testamentary power, freed from a dower right on the admeasurement of which a receiver had been appointed, an order, made on the petition of the purchaser, discharging the receiver and awarding possession to the purchaser, is a final order in a special proceeding and appealable as such. Conlon v. Kelly (1910), 199 K Y. 43. Delivery of booJiS and papers. — An order of the Appellate Di- %dsion reversing an order of the Special Term granting an appli- cation made under section 247l.a of the Code, to compel the de- livery of books and papers to a public officer, and which denied the application, is a final order in a special proceeding and is reviewable by the Court of Appeals. Matter of Brenner (1902), 170 N. Y. 185. Discovery of decedent's property. — An order punishing the wit- ness for contempt in refusing to disclose information which was not privileged, in a proceeding instituted under section 2707 of the Code of Civil Procedure to discover property belonging to a decedent's estate, is the final order in the proceeding and, there- fore, appealable to the Court of Appeals. Matter of King v. Ash- ley (1904), 179 K Y. 281. Security for costs. — An order of the Appellate Division re- versing an order requiring the plaintiff to give additional security for costs is not appealable as matter of right. Dunk v. Dunk (1904), 177 K Y. 264. Dismissal of complaint. — Where a judgment dismissing the complaint does not declare that the dismissal was upon the merits 52 CouET OF Appeals Peactice. [Rule 1 the judgment is, nevertheless, to be deemed a final one, and not merely a nonsuit, if an inspection of the judgment-roll, on ap- peal, makes it clearly appear that the dismissal was upon the merits. Keys v. Smith (1906), 183 IST. T. 376. Appeal from order granting neiv trial. — Where a judgment of a trial court is reversed and a new trial granted, an appeal cannot be taken from the judgment of reversal, but it must be reviewed upon an appeal from the order granting the new trial (Code Civ. Pro., § 1318) ; and if the judgment is not entered until after the order, the sixty days within which an appeal must be taken from the order (Code Civ. Pro., § 132.5) does not com- mence to run until the entry of the judgment. Wingert v. Krakauer (1905), 180 N. Y. 265. Review of order denying new trial. — There is no authority for an appeal to the Court of Appeals from an order affirming an order denying a motion for a new trial. In such case, the appeal must be taken from the judgment, and on such an appeal only can the Court of Appeals review the decision below. Matter of Hopkins (1906), 186 K Y. 580. Code, section 190, subdivision 2. Appeals hy allowance and certification j certified questions. — A question certified by the Appellate Division, under section 190 of the Code, should be a distinct point or proposition of law, clearly stated, so that it can be definitely answered without regard to other issiies in the case, and should be a question of law only. If a question is stated in such broad and indefinite terms that it will admit of one answer under one set of circumstances, and a different answer under another, or if it presents merely an abstract proposition, and no facts are disclosed in the record which show that it arose in the case, the Court of Appeals will decline to answer it. Grannan v. Westchester Pacing Asso. (1897), 153 N. Y. 449; Hearst v. Shea (1898), 156 1\T. Y. 169'. Where an appeal lies to the Court of Appeals as matter of right, the scope thereof cannot be limited by the certification by the Appellate Division of questions for review. Seaward v. Davis (1910), 198 N. Y. 415. Even if a notice of entry of an order fails, by reason of in- Eule 1] The Return. 53 sufficiency, to limit the time to appeal, no ease is presented for tlie Court of Appeals by an order of the Appellate Division al- lowing nunc pro tunc an appeal previously taken without a pre- requisite permission, where no appeal has been taken within sixty days after the allowance of the right of appeal. GUiarantee Trust Co. V. P. E. & N. E. E. E. Co. (1899), 160 IsT. Y. 1. Questions certified to the Court of Appeals can be reviewed only so far as they actually arose and were determined by the Appellate Division, Schenck v. Barnes (1898), 156 X. Y. 316, for the Court of Appeals has no jurisdiction, under this section of the Code, to review a certified question which was not passed tipon by the Appellate Division, Coatsworth v. Lehigh Valley Ey. Co. (1898), 156 K Y. 451. Hence, where, on an appeal upon certified questions, from an interlocutory judgment upon a demurrer, it appears that the only question passed upon by the Appellate Division was whether the complaint stated a cause of action, the Court of Appeals will not answer other questions. Id. On an appeal by allowance of the Appellate Division, upon questions certified by it, nnder section 190 of the Code of Civil Procedure, the Court of Appeals has no authority to determine any of the questions involved except those certified for that pur- pose. Grannan v. Westchester Eacing Assn. (1&97), 153 IST. Y. 449. Question must require determinative answer. — ^When a case not otherwise reviewable by the Court of Appeals is brought up on specific certified questions, the questions should be so framed that the answers may determine the particular controversy in- volved in the appeal and not merely a part of it. Where the de- cision below may stand upon several grounds, it is not enough that the questions certified present only the weak propositions involved in the particular ground claimed to be affected with error, ignoring all the other grounds upon which the decision may well stand. Blaschko v. Wurster (1888), 156 N. Y. 437. An appeal from an order, brought up on a certified question, will be dismissed where the answer to the question would not necessarily determine as a matter of law whether the order should have been granted or denied. Smith v. Brown Brothers Co. (1909), 196 N. Y. 31. While, on an appeal by certification, the Court of Appeals is 54 Court op Appeaxs Practice. [Rule 1 confined to the question certified, it is its duty to ascertain all the facts that raise the question, so that it can be decided as an existing issue between the parties, and the danger of passing upon merely abstract propositions avoided. Baxter v. ilcDonnell (1897), 154 N. Y. 432. Question involving discretion. — On the certification by the x\p- pellate Division, of the question of law whether the Supreme Court had jurisdiction of an action for an injunction which it had refused to entertain, the Court of Appeals cannot determine whether the Supreme Court might in its discretion have declined to entertain jurisdiction. Davis v. Cornue (1896), 151 N. Y. 172. A certified question as to the propriety of the Supreme Court exercising its discretion on a state of facts not presented by the complaint must be regarded as containing an abstract statement of facts and is not reviewable by the Court of Appeals. Stein- way V. Bernuth (1901), 167 N. Y. 49-8. Permission must precede appeal. — Where an appeal from an order not appealable as of right has been taken to the Court of Appeals withoiit prior permission, the Appellate Division has no authority to grant a retroactive allowance of the appeal nunc pro tunc. Guarantee Trust Co. v. P. E. & IST. E. R. E. Co. (1899), 160 N. Y. 1. An appeal taken without prior permission, from an order not appealable as of right, is not cured by a subsequent order of the Appellate Division purporting to allow the appeal nunc pro tunc and certifying a question for review, made after the expiration of the statutory time to appeal. Guarantee Trust Co. v. P. E. & ]\\ E. E. E. Co. (1899), 160 iS\ Y. 1. The service of a notice of appeal to the Court of Appeals from an order other than a final order in a special proceeding, withoTit leave of the Appellate Division, is a mere nullity; and an order granting leave subsequently obtained does not validate the appeaL Steamship Eichmond Ililf Co. v. Seager (1899), 160 X. Y. 312. Time to appeal after allcirance of right. — The time to ai^peal from an ordr-r requiring an allowance bv the Appellate Division to create tlie right to appeal may be extended by the necessity of obtaining;' the allowanco; niid when, by diligence, it has been obtained, the appeal must then be taken within a reasonable Rule 1] The Ketuen. 55 time, not to exceed sixty days. Steamship Eichmond Hill Co. v. Seager (18990, 160 N. Y. 312. Order assessing damages upon judgment absolute on stipula- tion. — While an order of the Appellate Division, affirming an assessment of damages upon a judgment absohite directed by the Court of Appeals, is not appealable to the Court of Appeals, as a matter of right (Bassett v. French [1898], 155 N. Y. 46), or even when certified by the Appellate Division, where the assess- ment of damages involves a discretion on the part of the court or jury making the assessment (Lewin v. Lehigh Valley R. R. Co. [1902], 169 ]Sr. Y. 336), yet, where items of damages disallowed are definitely fixed and determined and the court making the assessment has certified that they were rejected " as a matter of law and not as a, matter of discretion," and the Appellate Di- vision has certified ithat a question of law has arisen which ought to be determined by the Court of Appeals, thereby raising ques- tions of law as to the items rejected and bi-inging the case within the requirements of section 190 of the Code of Civil Procedure, the appeal is well taken and the order is reviewable in the Court of Appeals. City Trust, etc., Co. v. Am. Brewing Co. (1905), 182 ]Sr. Y. 285. Interlocutory judgment. — An appeal from ithe interlocutory judgment or order which decided the question, while not review- able of itself, is proper to enable the Court of Appeals to enter- tain a question of law certified to it by the Appellate Division for review. Blank of Metropolis v. Faber (1896), 150 N. Y. 2m. The answer of the Court of Appeals to questions certified to it for decision m\ist be limited to the questions which were before the courts below as raised by the facts disclosed, and cannot ex- tend to abstract propositions or contingent questions. Matter of Robinson (1899), 160 N. Y. 448. Allowance of appeals. — The provision of the Constitution per- mitting the Appellate Division to allow appeals was intended to ^Pply to cases where the appeal is not given as miatter of right; and that court has no power to allow an appeal, given as matter of right upon certain conditions, by dispensing with the condi- tions. Mundt'v. Glokner (1899), 160 N. Y. 571. The provision of the Constitution empowering the Appellate Division to " allow an appeal upon any question of law which, 5'6 CouET OB" Appeals Peactice. [Rule 1 in its opinion, ought to be reviewed by the Court of Appeals," applies only to the allowance of appeals from interlocutory or nonfinal judgments and orders, and was not intended to nullify or affect the provision which prevents the Court of Appeals from reviewing questions as to the sufficiency of the evidence. Reed V. McCord (189'9), 160 N. Y. 330. The right of appeal to the Court of Appeals by allowance of the Appellate Division, under either sections 190 or 191 of the Code, does not become absolute until the Appellate Division haa made the proper order allowing the appeal, and the time within which such appeal must be taken, under section 1325 of the Cbde of Civil Procedure, does not begin to run until such order is granted ; but application for such leave to appeal must be made at the term of the Appellate Division at which the order or judgment appealed from was granted, or before the end of the next succeeding term, and if the order allowing the appeal is not obtained within that time, none can be subsequently granted. Porter v. International Bridge Co. (1900), 163 'N. Y. 79; Matter of City of K Y. (1900), 119 App. Div. 74. Appeal^ hy alloivance, from interlocutory judgment. — The time within which an appeal by allowance of the Appellate Di- vision can be taken to the Court of Appeals from an interlocutory judgment on a demurrer may be limited by notice to sixty days after the right to appeal exists. Porter v. International Bridge Co. (1900), 163 N. Y. 79. Abstract questions. — The Appellate Division has no power to certify abstract questions to the Court of Appeals for review, and the latter court has no power to answer such questions, since it is limited to a review of the determination of the Appellate Divi- sion. Matter of Davis (1901), 168 K Y. 89. Certified questions of fact. — Where, after reversing a surro- gate's decree, passing the accounts of trustees, upon questions of fact as well as of law, the Appellate Division certifies to the Court of Appeals certain questions whose answers depend upon the facts established by the evidence from which different infer- ences may be drawn, the Court of Appeals cannot answer the question certified, as its jurisdiction is limited to the review of questions of law, and the power of the Appellate Division to allow an appeal to the Court of Appeals is also limited to ques- tions of law. Matter of Westerfield (1900), 163 IST. Y. 209. Eule 1] The Retuen". 57 Inejfective questions. — A certified question should present a question of law only; and if it presents a mixed question of law and fact it is not reviewable. Matter of Opening Townsend Ave. (1903), 175 ]Sr. Y. 508. Questions which were not properly before the original tribunal are not answered by the Court of Appeals, although certified to it by the Appellate Division. Matter of Coatsworth (1899), 160 N. Y. 114. The ^allowance of an appeal by the Appellate Division does not require the Court of Appeals to adopt any different rule in determining the questions which are thus brought before it from that enforced in ordinary cases where no such allowance is neces- sary; and where the appeal is from an order not reviewable, it must be dismissed, notwithstanding its allowance. Caponigri v. Altieri (190'0), 164 N. Y. 476. But see Routenberg v. Schweitzer (1909), 165 N. Y. 175. Form of certified question. — Each question certified to the Court of Appeals should be separately stated, so that it can be answered yes or no; and several propositions should not be com- bined in a compound question, alternative in form, which cannot be categorically answered. Devlin v. Hinman (1899), 161 N. Y. 15; Eairweather v. Burling (1905), 181 X. Y. 117. For examples of faulty forms of certified questions, see Malone V. Saints Peter & Paul's Church (19'02), 172 N. Y. 269. Scope of subdivision 2. — It is only where an appeal is allowed under subdivision 2 of section 190 that questions should be cer- tified to the Court of Appeals. Seaward v. Davis (1910), 198 K Y. 415. The requirements of this stibdivision, as to certified questions, have reference only to appeals allowed by the Appellate Division other than appeals from judgments or orders finally determining actions or special proceedings and from orders granting new trials on exceptions, and do not apply to appeals that are allowed under section 191 of the Code. Klein v. East River Elec. Light Co. (1905), 182 K Y. 27. Code, section 191, subdivision 1. Appeals from inferior local courts hy allowance. — The provisions of subdivision 1 of section 191 of the Code of Civil Procedure, which took effect January 1, 1896, that 58 CouBT OF Appeals Peactice. [Rule 1 " no appeal shall be taken to " the Court of Appeals " in any civil action or proceeding commenced in any court other than the Supreme Court, County Court or a Surrogate's Court, unless the Appellate Division of the Supreme Court al- lows the appeal," was intended to refer only to courts existing when it took effect, namely, inferior local courts, and does not apply to actions commenced in superior city courts, which, by force of the Constitution of 1894 ceased to exist' on December 31, 18915. Halliburton v. Clapp (1896), 149 N. Y. 183. This provision applies to an action originally commenced in a Justice's Court, ' discontinued there on the interposition of an answer of title, and thereupon prosecuted in the Supreme Court. Sidwell V. Greig (189'8), 157 ^. Y. 30. The entry of a judgment on the order of the Appellate Divi- sion affirming a judgment carried to it from the Municipal Court of the City of New York through the Appellate Term is essential to a review by the Court of Appeals, and the appeal to that court must be from such judgment. Moore v. Board of Education (1909), 195 ]Sr. Y. 601. General statement. — In allowing an appeal under this subdi- vision it is suiEcient and proper for the Appellate Division to state generally that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals. It is not reqiiired to certify questions to be answered. Klein v. East River Elec. Light Co. (1905), 182 N. Y. 27. Specific question nugatory. — The Court of Appeals cannot answer a question certified to it by the Appellate Division upon the allowance of an appeal from a final judgment in an action commenced in an inferior local court, in the absence of a pro- vision for the certification of questions upon such an allowance of appeal. Swan v. Inderlied (1907), 187 X. Y. 372. Code, section 191, subdivision 2. Jurisdiction. — This amendment did not add to the questions which the Court of Appeals may review, and is controlled by the provision of the Constitution which prohibits that court from reviewing the question of the sufficiency of the evidence to sus- tain a verdict not directed by the court, unanimously affirmed by the Appellate Division. Reed v. ilcCord (1899 ), 160 N. Y. 330. The permission to appeal, under subdivision 2 of section 191, Rule 1] The Eetuen. 59 in no way enlarges the jurisdiction of the Court of Appeals with respect to the questions that may be reviewed by it upon a hear- ing of the appeal. Commercial Bank v. Sherwood (1900), 164 1n\ Y. 310. A decision or memorandum of decision of the Appellate Divi- sion is not a judgment; and the amendment to section 191 of the Code of Civil Procedure (L. 1896, ch. 559), restricting appeals from a judgment of affirmance in actions to recover damages for personal injuries where the decision is unanimous, applies to a judgment entered subsequent to. its passage although the decision was prior thereto. JSTiendorff v. Manhattan R. Co. (1896), 150 :N^ Y. 276. The burden of showing that a judgment of affirmance in an action for a personal injury was by a unanimous decision of the Appellate Division rests upon the party asserting it, in order to deprive the Court of Appeals of power to review, under section 191 of the Code of Civil Procedure; and recourse cannot be had to the opinion, but the fact should be established either by the judgment or by a certificate of the court appearing in the record. Kaplan v. N. Y. Biscuit Co. (1896), 151 IS. Y. 171. A judgment entered upon an order of the Appellate Division overruling exceptions directed to be heard by it in the first in- stance, denying the motion for a new trial based thereon, and ordering judgment upon the verdict, is a judgment of affirmance, within the meaning of the provision of section 191 of the Code of Civil Procedure which prohibits appeals as of right to the Coiirt of Appeals from a judgment of affirmance in an action for a per- sonal injury when the decision of the Appellate Division is unani- mous. Huda V. American Grlucose Co. (1897), 151 ~N. Y. 549. The prohibition of appeals as of right to the Court of Appeals, from judgments of affirmance in actions for personal injuries, when the decision of the Appellate Division is imanimous, is ex- pressly authorized by the Constitution (Corveno v. Atlantic Ave. E. E.. Co. [1896], 15'0 !N". Y. 225 ) ; and was a competent exercise of the legislative power. Sciolina v. Erie Preserving Co. (1896), 151 N. Y. 50. Scope of provision. — It seems that subdivision 2 of section 191 applies to the unanimous affirmance by the Appellate Division of any final judgment in an action enumerated therein, such as a 6'0 Court of Appeals Peactige. [Rule 1 judgment entered upon the dismissal of the complaint by the trial court (Rahm v. JT. Y. C. & H. E. R E. Co. [1909], 194 N. Y. 572) ; or a final judgment on demurrer following a unanimous affirmance by the Appellate Division of an interlocutory judg- ment. MclSTamara v. G-oldan (1909), 194 IST. Y. 315. When leave to appeal not required. — Where the final judgment of Special Term on a demurrer, in an action specified in subdi- vision 2 of section 191 of the Code was entered solely in compli- ance with the reversal by the Appellate Division of an interloc- utory judgment, such final judgment is in effect that of the Appel- late Division and not of the Special Term; and an unanimous affirmance thereof by the Appellate Division, being not an affirm- ance but a reversal of the action of the trial court, is appealable to the Court of Appeals without leave. MclSTamara v. Goldan (1909), 194 K Y. 315. Allowance of appeal. — The authority reserved by the amend- ment of 189'6 (chap. 559) to section 191 of the Code of Civil Pro- cedure, for the allowance of an appeal to the Court of Appeals by the Appellate Division, by certificate, or, on its refusal, by a judge of the Court of Appeals, was intended primarily to provide for exceptional cases where public interests or the interest of juris- prudence might be endangered by permitting a decision to go un- challenged; and the mere existence of errors prejudicial to the particular parties does not of itself warrant the allowance of an appeal. Sfeiolina v. Erie Preserving Co. (1896), 151 !N". Y. 50. For an appeal under subdivision 2 of section 191 of the Code, a certificate of the Appellate Division stating generally that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals is sufficient without specifying questions for review, since such appeal by certification (as disting-uished from that provided by subdivision 2 of section 190), is general, and does not call for the formulation or certification of specific questions of law for review (Young v. Fox [1898]. 155 Is. Y. 615 ; Kurz v. Doerr [1904], 180 N. Y. 88; Fisher Co. v. Woods [1907], 187 N. Y. 90); and under such general certificate all questions of law raised by exceptions and presented by the record may be reviewed except the legal question as to the sufficiency of the evidence to sustain a finding of fact or a verdict not directed by the trial court. Commercial Bank v. Sherwood (1900), 16'2 K Y. 310. Rule 1] The Retuen. 61 Upon a motion to the Appellate Division for leave to appeal to the Court of Appeals, pursuant to section 191 of the Code of Civil Procedure, the question of law which the moving party de- sires to have reviewed must be definitely and concisely stated in the notice of motion; and in case the questions are not so stated the motion will be denied. Harroun v. Brush Elec. Light Co. (18'&7), 14 App. Div. 19. In Delaney v. Valentine (1896), 11 App. Div. 523, it was considered that a case which has been decided in the Appellate Division in deference to a previous decision of the General Term in the same case, made before the enactment of the amendment to section 191 of the Code of Civil' Procedure restricting appeals as of right to the Court of Appeals in actions for a personal injury or to set aside a transfer as in fraiid of creditors, does not oome within the ordinary rules governing applications for leave to ap- peal to the Court of Appeals, and that, in such a case, the applica- tion for leave to appeal to that court should be granted. The Appellate Division, on an application for leave to appeal to the Court of Appeals under subdivision 2 of section 1'91 of the Code, cannot determine whether the case is appealable without a certificate that a question of law is involved which ought to be reviewed, that question being for the Court of Appeals. Springs V. James (1910), 1-37 App. Div. 669. An application for leave to appeal to the Court of Appeals under section 191, subdivision 2, should be denied, where the record presents no question involving any principle that concerns any one except the immediate parties to the action. The provi- sions of the statute authorizing the allowance of appeals to this court in cases where appeals are not given as matter of right, were intended to provide for exceptional cases where public inter- ests or the interests of jurisprudence might be endangered by per- mitting a decision to go unchallenged. The mere existence of errors prejudicial to the particular parties to the controversy does not of itself warrant the allowance of an appeal. MS. mem- orandum in Meeker v. Remington & Son Co., cited 68 App. Div. 651, in case of Carlock v. ¥. Y. C. & H. R. R. P. Co. An application, under subdivision 2 of section 191, to a judge of the Court of Appeals for the allowance of an appeal may be made ex parte; and the allowance, when regularly granted, is not reviewable by the court (Harmon v. Siegel-Cooper Co. [1900], 62 Court of Appeals Practice. [Eule 1 164 ]Sr. Y. 566) ; but when the appeal has been irregularly allowed, the allowance may be reviewed by the court. Carlisle v. Barnes (1905), 183 N. Y. 272. Where an application for leave to appeal to the Court of Ap- peals has been denied, by a judge of that court, an allowance of the appeal by another judge on a subsequent application must be set aside, since the statute (Code Civ. Pro., § 191) does not con- template or authorize a repetition of such an application after its denial by one judge of the court to the other judges in succession until the list of judges has been exhausted. Carlisle v. Barnes (1905), 183 N. Y. 272. ■ The Court of Appeals cannot, after a unanimous af&rmance by the Appellate Division, review the sufficiency of the evidence to sustain a verdict, in an action for personal injuries, notwith- standing the allowance of an appeal, but can consider onlj^ such questions of law as are raised by proper exceptions. Kleiner v. Third Ave. R. R. Co. (1900), 162 K Y. 193. Personal injury. — In an action for negligence, exceptions to a charge and refusal to charge as to the duty defendant, a telephone company, owes a lineman to inspect a pole used but not owned by it, without any request for the direction of a verdict or for a nonsuit, entitle the defendant, on appeal by permission, to have the question thereby raised passed upon by the Court of Appeals, although it is one necessarily determined by a denial of the mo- tion to dismiss the complaint and a judgment entered upon a verdict in favor of the plaintiff has been unanimously affirmed by the Appellate Division. McGuire v. Bell Telephone Co. (1901), 167 N. Y. 208. The claim that the decision of the Appellate Division upon the question of the plaintiff's contributory negligence is in direct con- flict with the controlling decisions on the siibject, furnishes no ground for the allowance, by a judge of the Court of Appeals, of an appeal from a unanimous affirmance of the judgment of the trial court, as such affirmance prevents the Coiirt of Appeals from reviewing the motion to dismiss the complaint at the close of the case. M'S. memorandum in Vandecar v. Universal Trust Co. (1903). ISTor does an exception to the admission of a deposition of the deceased stating the facts and circumstances of the injury which Rule 1] The Eeturn. 63 resulted in his death, where the question is merely one of practice that concerns only the parties to the action and involves simply the construction and legal effect of a stipulation in reference to the deposition, made by the respective attorneys who had control of the case at the time. MS. memorandum in Ludeman v. Third Ave. R. E.. Co. (1903). Libel. — An action of libel is within this provision, since " per- sonal injury " includes libel. ]\IcXamara v. Goldan (1909), 194 K Y. 315. Compensation for services. — The restriction of the right of appeal to the Court of Appeals from a unanimous affirmance by the Appellate Division " in an action to recover wages, salary or compensation for services " extends to an action to recover com- pensation for professional services of an attorney. Boyd v. Gor- man (1898), 157 N. Y. 365. Code, section 191, subdivision 3. Questions of law. — Exceptions to rulings upon the admission and rejection of evidence, in an action tried by a jury, which appear from a mere inspection of the record to be without merit and frivolous, present no question of law that can be reviewed by the Court of Appeals. Szuchy v. Hillside C. & I. Co. (1896), 150 X. Y. 219. Unless an error upon a trial is so substantial as to raise a pre- sumption of prejudice, it does not require a new trial and should be disregarded. Post v. Brooklyn Heights E. E. Co. (1909), 195 X. Y. 62. Although a question of law is presented, it will not ordinarily be entertained by the Court of Appeals where, by the lapse of time or other reason, it has become merely abstract and academic, unless of great public importance, as, for instance, where liable to affect future general elections. Matter of Social Democratic Party (1905), 182 N. Y. 442. It is imnecessary to label either the facts or the law, because they classify themselves according to their nature and cannot be changed if classified wrongly, by court or counsel. If a fact is characterized as a conclusion of law, that does not make it one, for it is a fact still regardless of the name given it. See Jefferson Co. Nat. Bank v. Dewey (1905), 181 N. Y. 115. A finding of fact does not lose its character by being mis- 64r C'ouET OF Appeals Peactice. [Rule 1 placed or misnamed. A so-called conclusion of law may be treated as a finding of fact for the purpose of upholding a judg- ment, and it may be so treated for the purpose of reversal. Whalen v. Stuart (190&), 194 IST. Y. 495. Erroneous designation of finding. — The Appellate Division cannot create an error of law by certifying that there is one. Peo- ple V. Huson (igO'Y), 187 N. Y. 9'7; and a finding, when it is a statement of conclusions of law, can be reviewed upon an ex- ception, although denominated a conclusion of fact. Smyth v. Brooklyn Union El. R. R. Co. (1908), 193 IST. Y. 335. Question of law dependent upon determination of question of fact. — The question as to whether a contract is void under the Sitatute of Frauds is ordinarily a question of law reviewable by the Court of Appeals under an exception taken to a refusal to nonsuit it upon that ground ; but in a case where that question ia dependent upon the determination of a question of fact, viz., as to whether there was a consideration sufiicient to sustain the con- tract, and that has been settled by a verdict and by a unanimous aflirmance by the Appellate Division, exceptions to the refusal to nonsuit upon that ground raise no question which the Court of Appeals has power to review. Lamkin v. Palmer (1900), 164 K Y. 201. Upon appeal from an order and judgment of the Appellate Division, reversing a judgment in favor of the plaintiff and dis- missing the complaint upon the merits, in an action tried by the court or a referee, where the decision did not state separately the facts found and the order of the Appellate Division is silent as to its grounds, the review by the Court of Appeals is confined to the consideration of whether, upon the decision made by the trial court upon the facts, the legal conclusion followed that the plain- tiff was entitled to the relief awarded him, and, if there was no error in that respect, whether there were errors of law committed in the rulings upon the trial, which would, in any event have jus- tified a reversal of the judgment and rendered a new trial neces- sary. Bomeisler v. Forstei" (1897), 154 K Y. 229. On appeal from an order of the Appellate Division reversing a referee's judgment dismissing the complaint, where the order does not show that the reversal was upon the facts, the review by the Court of Appeals is confined to the consideration of whether, Rule 1] The RETniusr. 65 upon the decision made by the referee upon the facts, the legal conclusion followed that the defendant was entitled to a dismissal of the complaint. Petrie v. Hamilton College (1899), 158 IST. Y. 458. On appeal from an order of reversal of the Appellate Division, stating that the reversal was on a question of fact, a question of law arises whether a question of fact was presented upon the evidence for determination, and the Court of Appeals gains jurisdiction to review the case to that extent; but if that review results in ascertaining that there was a question of fact, the right to review ceases and the appeal must be dismissed. Health Dept. V. Dassori (1899) 159 N. Y. 245. Discretion. — A judgment granting a divorce to plaintiff, but awarding the custody of the children to defendant, is within the discretion of the Supreme Court, and where that court does not exceed its powers an affirmance thereof by the Appellate Division is not reviewable by the Court of Appeals. Osterhoudt v. Oster- houdt (1901), 168 K Y. 358. The question of the award and amount of costs in an action in equity for the construction of a will, being in the discretion of the Supreme Court, is not subject to review by the Court of Appeals so long as the allowances do not exceed the limitations provided by statute. Allen v. Stevens (1899), 161 IST. Y. 123. Where an order appealed from states that the determination of the Appellate Division was based upon a want of power to grant the application, without considering the question of discretion, a question of law is presented which it is the duty of the Court of Appeals to review, even if the courts below might have denied the application in the exercise of discretion. Matter of Thurber (1900), 162 K Y. 244. Where the order of the Special Term refusing a writ of man- damus does not state the ground of refusal, and the facts would have justified a refusal as matter of discretion, the refusal is not reviewable in the Court of Appeals, even though the order of the Appellate Division affirming the order of refusal expressly bases its determination not upon discretion but upon the questions of law involved. Matter of Hart (1899), 159 JST. Y. 278. An appeal from an order of the Appellate Division will not be dismissed on the ground that so far as the record discloses it may 5 66 Court of Appeals Peactice. [Eule 1 have been made in tte exercise of discretion, where the court allows the appeal and certifies a question o£ law for review, since it will be presumed under such circumstances that the determina- tion was made upon the merits, unless it expressly appears by the record that it was made in the exercise of discretion. Matter of Davies (1901), 168 K Y. 89. Where the denial of a motion for a new trial upon the ground of the misconduct of a juror is, upon the facts as disclosed, dis- cretionary with the trial court, the Court of Appeals, as a general rule, will not interfere, even in a capital case. People v. Koepping (1904), 17'8 K Y. 247. In Matter of Estate of Baldwin (1899), 158 N. Y. 713, a surrogate's order vacating a stay on probate, denying an applica- tion for issuance of letters testamentary and relief from a stipula- tion of renunciation by an executor, and granting letters of ad- ministration with the will annexed, was held to be discretionary and, therefore, not reviewable in the Court of Appeals. The Court of Appeals may not review the discretionary action of other courts — such, for instance, as that involved in setting off judgments, DeCamp v. Thompson (1898), 159 N. Y. 444; or that exercised under a writ of certiorari. People ex rel. Toms V. Bd. of Supervisors (1910), 199 N. Y. 150. Discretion — - Certiorari. — The Court of Appeals cannot review an order which simply dismisses a common law writ of certiorari, such an order being the result of an exercise of discretion by the court below. People ex rel. May v. Maynard (1899), 160 ]Sr. Y. 453. Discretion — Extra allowance of costs. — ^An appeal from an order granting an extra allowance of costs presents no question for review when there was sufficient evidence before the trial court to justify the exercise of its discretionary power to grant such an allowance. Woodbridge v. First Nat. Bank (1901), 166 X. Y. 238. Under the rule that the Court of Appeals has no power to re- view discretionary orders, the exercise by the trial court of power possessed by it to grant an additional allowance is not subject to review in the Court of Appeals; but the question as to whether the trial court had the power or authority to grant any additional allowance is a question of law subject to review in the Court of Rule 1] The Eeturn. 67 Appeals. Standard Trust Co. v. W. Y. C & H. E,. E. E. Co. (1904), 178 N. Y. 407. It is only where there is no power in the trial court to grant an extra allowance that the Court of Appeals will review an order granting the same ; and when that power exists the amount of the allowance rests in the discretion of the court below, subject only to the limitations of the statutes relating thereto. Mac- Donnell v. Buffalo L., T. & S. D. Co. (190'8), 193 N. Y. 92. But where there is no dispute about the facts, the question whether a case is so difficult and extraordinary as to justify an extra allowance is a question of law reviewable by the Court of Appeals upon an appeal from the judgment. Campbell v. Emslie (1907), 188 K Y. 509. Adding Party. — The Court of Appeals cannot review an order of the Supreme Court, such as an order bringing in an additional party, made in the exercise of its sound discretion, even though brought up by a certified question. Gittleman v. Feltman (1908), 191 K Y. 205. Discretion — Remarks of counsel. — Exceptions to the remarks of counsel in summing up are addressed to the discretion of the trial court and the Appellate Division, and raise no question of law for review by the Court of Appeals. The Appellate Division, in such case, could have reversed on the facts. Reehil v. Fraas (1909), 197 K Y. 64. Injunction. — While a temporary injunction involves discre- tion, a permanent injunction does not when the facts conclusively show that it would be inequitable and unjust as matter of law; and in such case the Court of Appeals will review and reverse its allowance. McClure v. Leaycraft (1905), 183 jST. Y. 36. An order of Special Term, within its discretion and affirmed by the Appellate Division, granting, instead of an alternative, a per- petual injunction in the first instance, restraining the construction of an electric railway upon a street, the fee of which is in the abutting landowner, and leaving the company to its proceeding to condemn, presents no question of law reviewable by the Court of Appeals. Peck v. Schenectady Ey. Co. (1902), 170 N. Y. 298. Discretion — Mandamus. — Where the court below has the power to grant a mandamus as a matter of discretion, its action in allowing the writ is not reviewable by the Court of Appeals. 08 CouET OF Appeals Peactice. [Rule 1 People ex rel. Rodgers v. Coler (1901), 166 N. Y. 1; People ex rel. Treat v. Coler (1901), 166 N. Y. 144. The Court of Appeals is not at liberty to review an order re- fusing a writ of peremptory mandamus where, even if a case was made out in which a peremptory writ might have been issued, the court below had a discretionary power upon the facts to refuse it. People ex rel. Steinson v. Board of Education (1899) 158 N. Y. 125. An order of the Appellate Division affirming an order of Special Term denying a motion for a peremptory writ of man- damus which fails to show that the writ was refused upon a ques- tion of law only, and, therefore, must be assumed to have been denied as a matter of discretion, is not reviewable by the Court of Appeals. People ex rel. Lentilhon v. Coler (1901), 168 N. Y. 6. Where the facts are sufficient to justify the court below in re- fusing a common-law mandamus as matter of discretion the Court of Appeals vnll not review its action unless it affirmatively ap- pears in the order denying the writ that it did not refuse the application in the exercise of discretion. People ex rel. If. Y. & H. R. R. Co. V. Board of Taxes (1901), 166 K Y. 154. An 'application for a peremptory writ of mandamus is addressed to the sound discretion of the Supreme Court, and where it ap- pears that the facts are such as to justify that court in refusing the writ as a matter of discretion, the Court of Appeals vnll not interfere unless it affirmatively appears in the order denying the writ that the court did not refuse the writ in the exercise of its discretion. People ex rel. Lehmaier v. Interurban Street Ry. Co. (1904), 177 ISr. Y. 296, citing Matter of Hart, 159 X. Y. 284; People ex rel. Durant L. I. Co. v. Jeroloman, 139 N. Y. 14; People ex rel. Jacobus v. Van Wyck, 157 N. Y. 495. Criminal conteinpt. — ■ To render a review by the Court of Ap- peals effective, an order of the Appellate Division reversing an order adjudging one guilty of criminal contempt should show on its face that the reversal was solely on the law. People ex rel. Drake v. Andrews (1909), 196 N. Y. 538. Discretionary decisions not reviewable. — Decisions resting in discretion, and free from abuse of its exercise, raise no question of law and are not reviewable by the Court of Appeals, the rule Eule 1] The Eettjen. 69 being that the decisions of one court resting in discretion, are not reviewable in another unless such review is especially authorized by law. White v. Benjamin (1896), 150 N. Y. 258. An order of the Appellate Division simply dismissing a common-law writ of certiorari, without affirming the proceedings or in any way passing upon tbe questions sought to be reviewed, being a discretionary order, is not reviewable by the Court- of Appeals. People ex rel. Goler v. Lord (1898), 157 N. Y. 408. Where an order of the Appellate Division refusing a writ of mandamus does not state tbe ground of decision and the writ may have been refused as a matter of discretion, the order must stand. People ex rel. Jacobus v. Van Wyck (1899), 157 N. Y. 4-95. An order affirming an order denying a motion for a new trial on the ground of newly discovered evidence, is an order resting in discretion and not reviewable by the Court of Appeals. White y. Benjamin (1896), 150 K Y. 258; Gaines v. Fidelity & Casualty Co. (1907), 188 iST. Y. 415. Costs in equity. — An abuse of the exercise of discretion appli- cable to the granting of costs in an equitable action can be cor- rected by the Court of Appeals on review of the judgment in the action. Eoberts v. X. Y. Elevated E. E. Co. (1898), 155 N. Y. 31. Withdrawal of juror. — Leave to withdraw a juror rests in the discretion of the trial court, and an exception to its denial pre- sents no error reviewable by the Court of Appeals. Cattano v. Met. Street Ey. Co. (1903), 173 X. Y. 565. Bill of particulars. — While the granting or denial of a motion for a bill of particulars ordinarily rests within the sound discre- tion of the Supreme Court, which discretion is not reviewable by the Court of Appeals, yet there is a limit to such discretion, and where an order requires a plaintiff to furnish the particulars of evidence, which it is not within his power to furnish, or pre- cludes him from giving lawful and proper evidence upon the trial because he has failed to specify in advance what such evidence will disclose, a question of law is presented which is reviewable in the Court of Appeals. People v. McClellan (190S), 191 N. Y. 341. Abstract or academic question. — An enactment by the Legisla- ture, prohibiting in express terms the corporation counsel of the 7'0 Court of Appeals Peactice. [Rule 1 city of New York from making an offer of judgment against the city does not render the question of the power of a corporation counsel to confess judgment academic as to cases arising prior to its passage or as to cases arising in other cities of the State. Bush V. O'Brien (1900), 164 X. Y. 205. It is the general practice of the Court of Appeals to refuse to decide abstract questions; Matter of Norton (1899), 158 K Y. 130; and relief from a judgment for costs merely is not adequate ground upon which to reverse a judgment, if the questions arising upon the merits have become obsolete by lapse of time. Williams V. Montgomery (1896), 148 N. Y. 519; Matter of Croker v. Sturgis (1903), 175 N. Y. 158. Waiver of exception raising question of law. — An exception to the denial of a motion for the dismissal of the complaint at the close of the plaintiff's case is not available in the Court of Appeals to present the question of law that there is no evidence to support the verdict, where the defendant, after the denial of the motion, proceeded with his case and went to the jury without having re- newed the motion to dismiss at the close of the whole evidence, as such action worked a waiver of the exception. Hopkins v. Clark (1899), 158 K Y. 299. Assessment of franchise tax. — An order of the Appellate Di- vision reversing a determination of the State Comptroller in the assessment of a franchise tax, not as to the amount of property held by a corporation within the State, but as to the character of a part of it, presents a question of law reviewable by the Court of Appeals. People ex rel. Commercial Cable Co. v. Morgan (1904), 178 ISr. Y. 433. Discretionary reversal in criminal case. — An order of reversal in ^a criminal case, such as an order of reversal upon the ground that justice requires a new trial, which does not upon its face exclude the possibility that it was based iipon an examination of the facts or made as a matter of discretion, presents no question of law reviewable by the Court of Appeals. People v. Calabur (1904), 178 K Y. 463. Reversal on law and facts. — Upon an appeal from an order of the Appellate Division reversing a surrogate's decree, upon the law and the facts, where the inferences from the uncontradicted evidence all ]ioint in one direction so that a reasonable mind can Bule 1] The Rettjrn. 71 reach but one conclusion, there is no question of fact and the Court of Appels has jurisdiction of the appeal. Matter of Totten (1904), 179 N. Y. 112. Short form decision. — On review of a decision in the short form, although unanimously affirmed, the Court of Appeals can- not presume that any fact was found not embraced within the pleadings, the findings 'as they appear in the record and the proofs upon which the decision was made ; and a general exception to the conclusion of law that the plaintiff was entitled to judgment raises the question of law of the plaintiff's right to maintain the action. Falk v. American West Indies Trading Co. (1905), 180 2T. Y. 445. Non^revieivahle qvestion of law. — An error of law, claimed to be raised by the declaration of a question of fact by the Appellate Division in an order of reversal where there is no question of fact in the case, in an action tried by a jury, is not reviewable by the Court of Appeals any more than a unanimous determination by the Appellate Division that there is evidence to support a verdict when, in the judgment of tbe Court of Appeals, there is no such evidence. Allen v. Corn Exchange Bank (1905), 181 K Y. 278. Question of law on denial of noiisuit. — Where a judgment on a verdict for the plaintiff, rendered upon issues submitted to the jury after the denial of a motion for a nonsuit, is affirmed by the Appellate Division, but not unanimously, the question of law is open in the Court of Appeals whether there was any evidence sufficient to justify the submission, and whether the motion for a nonsuit should not have been granted. Grady v. City of New York (1906), 182 N. Y. 18. Questions of law not raised on the trial by proper exceptions cannot be reviewed by the Court of Appeals, although the decision of the Appellate Division was not unanimous. Wangner v. Grimm (1902), 169 K Y. 421. Questions of law under surrogate's decree. — Exceptions to a surrogate's conclusions of law, in dismissing a proceeding in Sur- rogate's Court, present questions of law which are reviewable by the Court of Appeals upon an appeal from an order of the Appel- late Division, affirming the decree of the Surrogate's Court en- 72 Court op Appeals Practice. [Eule 1 tered upon and in accordance with such conclusions of law. Hat- ter of Killan (1902), 1Y2 IST. Y. 547. The Court of Appeals has no power to review the determina- tion of the Appellate Division in reversing a decree of a surrogate upon the facts. Matter of Thorne (1900), 162 ]sr. Y. 238. Mandamus. — ^An order of the Appellate Division reversing an order directing a peremptory writ of mandamus upon a verdict rendered upon the issues raised by the return to an alternative writ, and granting a new trial, is not reviewable by the Court of Appeals when it does not appear from the records that the re- versal was not based upon the ground that the verdict was against the weight of evidence ; the proper remedy is a new trial of the issues joined upon the alternative writ. People ex rel. McDonald V. Clausen (1900), 163 N. Y. 523. Question of law raised. — When the defendant has requested to go to the jury upon the facts and the request has been denied, although the record discloses no exception to the denial, an ex- ception noted to the subsequent direction of a verdict for the plaintiff suffices to raise on appeal the question of law whether the material facts in the case should not have been submitted to the jury. Kumberger v. Congress Spring Co. (1899), 158 X. Y. 339. Question of law not presented by record. — Upon an appeal from a judgment of the Appellate Division, entered upon a unani- mous decision that there is evidence supporting or tending to sus- tain the findings of fact of a referee, the Court of Appeals cannot review a question of law arising upon conceded facts not appear- ing in the findings of the referee. Hilton v. Ernst (1900), 161 N. Y. 226. The rule that the Court of Appeals cannot review questions of fact does not apply where an affirmance by the Appellate Division is not unanimous and there is a question whether there is any evi- dence in the case to support a finding of fact, as such conditions raise a question of law which the Court of Appeals may decide ; Ostrom V. Greene (1900), 161 JST. Y. 353; Beck v. Catholic Uni- versity (1902), 172 ~N. Y. 392; but where there is such evidence the question is no longer one of law, and the decision of the courts below upon the facts is final even though it may be erroneous. Hawkins v. Mapes-Reeve Construction Co. (1904), 178 K Y. 236. Rule 1] The Return. 73 Question of law raised hy exception to direction of verdict. — An exception to the direction of a verdict is sufficient to present the question upon appeal, without requesting that any fact be sub- mitted, in the absence of implied consent that the case be decided by the court. Second K"at. Bk. v. Weston (1900), 161 JST. Y. 520. Review of tionsuit. — A judgment dismissing a complaint, on the ground that plaintiff had failed to make out a cause of action, entered without a decision of the trial court upon the facts estab- lished at the trial, is a judgment upon a nonsuit, and may be re- viewed in the Court of Appeals. Ware v. Dos Passos (1900), 162 K Y. 281. An order of the Appellate Division reversing a judgment of the Special Term and granting a new trial, upon the ground that there was no evidence to sustain a finding of the trial court as to anyone of the facts material and necessary to sustain the judgment below, presents a question of law which must be re- viewed by the Court of Appeals. Shotwell v. Dixon (190O), 163 IT. Y. 43. Refusal to nonsuit presenting no error of law. — ^Where the Ap- pellate Division has reversed a judgment based upon a verdict held to be against the weight of evidence and grants a new trial, and on a subsequent trial the evidence is substantially the same as on the former trial, the refusal of the trial court to nonsuit presents no error reviewable by the Court of Appeals, where the evidence is sufficient to support a verdict either way. Fealey v. Bull (1900), 163 K Y. 397. An exception to the finding of fact unanimously affirmed by the Appellate Division presents no question reviewable by the Court of Appeals, and where the facts as found justify the con- clusions of law and no other exceptions appear which present any questions of law, the judgment must be affirmed. Krekeler v. Aulbach (1902), 169 N. Y. 372. Failure to find other facts. — Where a judgment is sustained by findings of fact and conclusions of law which are supported by evidence the failure of the trial court to find other facts, claimed to have been established by evidence, is not an error of law re- viewable by the Court of Appeals. ISTew York Cent. &c., E,. E. Co. V. Auburn, &c., K E. Co. 1904), 178 N. Y. 75. Failure to raise question below. — The objection that an action 74 CouET OF Appeals Practice. [Rule 1 of ejectment cannot be maintained for nonpayment of rent where the lease reserved to the landlord no right of re-entry in case of default and contained no provision that in such contingency the lease should determine, cannot be considered by the Court of Ap- peals where no motion was made at the trial to dismiss the com- plaint upon the ground that it did not state facts sufficient to con- stitute a cause of action. Jones v. Eeilly (1903), 174 IST. T. 97. Reversal upon law. — Where, on appeal from an order of re- versal upon the law only, it is found that the evidence supports the verdict, there is nothing open to review by the Court of Appeals other than exceptions relating to the evidence and the charge ; and unless one or more of these exceptions is sufficient to justify the reversal by the Appellate Division, it is the duty of the Court of Appeals to reverse the reversal and affirm the judgment of the trial court. Devoe v. Iv^. y. C. & H. E. K E. Co. (1903), 174 ]ST. y. 1. An appeal to the Court of Appeals from an order of the Ap- pellate Division which involves a question of fact must be dis- missed. Matter of Board of Education (1903), 173 IST. T. 321. The Court of Appeals has no power to set aside a verdict as against the weight of evidence. Merchants' ISTat. Bank v. Barnes (1902), 172 N. Y. 618. As to what is and what is not a question of law, see People ex rel. ISTorth v. Featherstonhaugh (1902), 172 N". Y. 112. Review of reversal on facts. — ^Where the findings are in accord- ance with the conceded facts or the uncontroverted testimony, the Appellate Division is not authorized to reverse upon the facts; and, if it does, a question of law is presented which the Court of Appeals may properlv review. Benedict v. Arnoux (1898), 154 ^\ Y. 715. The denial of a motion for a nonsuit based upon the insuffi- ciency of the evidence, does not present a question of law which will authorize the Court of Appeals to review a case in which the Appellate Division has unanimously decided that there was evi- dence supporting the verdict. Szuchy v. Hillside C. & I. Co. (1896), 150 N. Y. 219. An appeal from an order of reversal of the Appellate Division, made by a divided vote, granting a new trial on exceptions filed, and stating that it is upon questions of fact, or questions of fact I?rale 1] The Return. 75 and law, raises a question of law as to whether there was any evi- dence to support the view of the Appellate Division, and if there is no material question of fact appearing in the record, the Court of Appeals has power to review; but if it appears that there was any material and controverted question of fact, and hence, that the Appellate Division had power to reverse upon the facts, its decision is final, and the Court of Appeals must, by force of the restriction of its jurisdiction to the review of questions of law affirm the order or dismiss the appeal therefrom. Otten v. Man- hattan E. Co. (1896), 150 N. Y. 395. Upon appeal from an order of reversal of the Appellate Divi- sion stating that the reversal was upon questions of fact, or of both law and fact, the Court of Appeals is not concluded by such statement, but has power to determine whether a question of fact is involved in the case, and if there is none it has jurisdiction to review the law. Hirshfeld v. Fitzgerald (1898), 157 X. Y. 166 ; Griggs V. Day (1899), 158 K Y. 1 ; Hirsch v. Jones (1908), 191 ¥. Y. 195. As to when Court of Appeals may examine the facts to discover questions of law, see, also, Penryhn Slate Co. v. Granville El. L. & P. Co. (1905), 181 K". Y. 80; also, Eeich v. Dyer (1905), 180 K Y. 107. Order involving disputed fact. — The Court of Appeals has no power to review an order denying a motion to resettle and amend an order dismissing a writ of certiorari to review an as- sessment, so as to have it appear that the hearing took place upon a stipulation as to a fact, where the making of the stipulation was denied by opposing affidavits. People ex rel. Ford v. Gillette (1899), 159 N. Y. 125. (See, also, under sections 1337 and 1338 of the Code under Eule VIII.) Code, section 191, subdivision 4. Unanimous decision of Appellate Division. — The provision that " No unanimous decision of the Appellate Division of the Supreme Court that there is evidence supporting or tending to sustain * * * a verdict not directed by the court, shall be reviewed by the Court of Appeals," is final and conclusive; and the Court of Appeals is without juris- diction to review such a decision, even if the trial court erred in 76 CouET OF Appeals Peactice. [Rule 1 holding that the evidence was sufficient to require the submission of the case to the jury, and the Appellate Division was wrong in deciding that the evidence sustained the verdict. Szuchy v. Hill- side C. & I. Co. (1896), 150 N. Y. 219. It seems that the provision that " No unanimous decision of the Appellate Division of the Supreme Court, that there is evi- dence supporting or tending to sustain a finding of fact, * * * shall be reviewed by the Court of Appeals," applies to special proceedings as well as to actions, and to implied findings as well as to those written out in extenso. People ex rel. Manhattan Ky. Co. V. Barker (1897), 152. IST. Y. 417. The effect of an unanimous judgment or order of affirmance by the Appellate Division is a decision that there is evidence sup- porting the findings of .fact as expressed or necessarily implied. It is not necessary for that court to specify what findings of fact are sustained by evidence, when it intends to sustain them all, or to repeat the language of the Constitution and apply it generally to all the findings of fact. People ex rel. Manhattan Ey. Co. v. Barker (1897), 152 K Y. 417; Keyes v. Smith (1906), 18S N" Y. 376. The restriction imposed by the Constitution upon a review of a unanimous decision of the Appellate Division, that there is evidence supporting a finding of fact, applies to an order of affirmance in a statutory proceeding to review an assessment in which a trial de novo has been had at Special Term, upon new evidence, as to the value of the relator's property, resulting in a confirmation of the assessment and a dismissal of the writ of certiorari. People ex rel. Manhattan Ey. Co. v. Barker (18i97), 152 ISr. Y. 417. When the Appellate Division has unanimously affirmed an order dismissing, upon the merits, a writ of certiorari to review an assessment, the Court of Appeals has no .jurisdiction to re- view the facts which are alleged to show the existence of the grounds of the writ. People ex rel. Bdwa3^ Imp. Co. v. Barker (1898), 155 ISr. Y. 322. Judgment solely on incompetent evidence. — Where it appears, upon an appeal to the Court of Appeals from a judgment entered upon a decision of the Appellate Division unanimously affirming a judgment entered upon a decision of the Court at Special Term, that there is no evidence, except that held incompetent by the Rule 1] The Return. 7Y Court of Appeals, to justify the findings of fact made by the trial court, such evidence must be presumed to have controlled the re- sult and its admission requires a reversal of the judgment. Hind- ley V. Manhattan Ey. Co. (1906), 185 N. Y. SaS. Construction of instrument. — The provision that no unani- mous decision of the Appellate Division that there is evidence sup- porting a finding of fact shall be reviewed by the Court of Ap- peals, has no application where no question of fact was in contro- versy and the only question involved was the legal construction of the instrument of transfer and the statute. Matter of Green (ISOY), 153 :N. Y. 223. See, also, Kennedy v. Mineola H. & F. Traction Co. (1904), 178 E". Y. 508. Unanimous decision — unanimity not assumed. — If it does not appear from the order or judgment that an afiirmance by the Ap- pellate Division was unanimous, the Court of Appeals will assume that it was not, and will determine whether the evidence was sufficient to warrant the submission of the case to the jury where the defendant has moved for a dismissal of the complaint. Perez V. Sandrowitz (1905), 180 N. Y. 397. Effect of unanimous decision by Appellate Division. See Con- solidated Ice Co- V. The Mayor (1901), 166 K Y. 92; Wood- bridge V. First ITat. Bank (1901), 166 N. Y. 238; Johnston v. Dahlgren (1901), 166 K Y. 354; Bluu v. Mayer (1907), 189 K Y. 153. Where a determination made by the -State Board of Railroad Commissioners, involving a question of fact, has been affirmed unanimously by the Appellate Division on certiorari, the Court of Appeals has no power to review, when no question is raised that is not necessarily determined by the decision of the question of fact. People ex rel. Loughran v. Railroad Com'rs (1899), 158 W. Y. 421. When it appears from the record that the affirmance by the Appellate Division of a judgment entered on a verdict not directed by the court was unanimous, the Court of Appeals is compelled to presume that there was sufficient evidence to sustain the facts found by the jury. Ayres v. Del., Lack & West. E. R. Co. (1899), 158 ISr. Y. 254. A unanimous affirmance by the Appellate Division of a Special Term judgment limits the Court of Appeals to an examination 78 C'ouET OF Appeals Practice. [Rule 1 of the correctness of the legal conclusions upon the facts found by the trial court. Kissam v. United States Printing Co. (1910), 199 ]Sr. Y. 76. Burden of proving unanimity of decision. — The burden of proving that the decision of the Appellate Division that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court was unanimous, in order to de- prive the Court of Appeals of power to review questions of law as to the suiSciency of the evidence, on appeal from a final judg- ment of affirmance, rests upon the party asserting it, and the fact should appear in the record. Laidlaw v. Sage (189i9), 158 INT. T. 73. Finding of fact. — Since the adoption of the present Constitu- tion, the question whether a finding of fact is sustained by evi- dence, though one of law, is not reviewable by the Court of Appeals, when the Appellate Division has affirmed the judgment by an unanimous decision, harden v. Dorthy (189|9), 160 JSL Y. 39. When findings of fact have been affirmed by the Appellate Division in an unanimous decision, the Court of Appeals must accept them as they are in their fair scope and meaning, without adding to or taking anything from them, and, applying them to the case, the only question that can arise is whether they support the legal conclusions drawn from them by the courts below. Mar- den V. Dorthy (1899), 160 K Y. 39'. The provision, that no unanimous decision of the Appellate Division that there is evidence supporting or tending to sustain findings of fact shall be reviewed by the Court of Appeals, applies not only to the facts affirmatively stated in favor of the successful party, but to those expressly or impliedly negatived against the party appealing. Marden v. Dorthy (1899-), 160 JST. Y. 39. Finding involving stipulated facts. — The principle that a find- ing, although unanimously affirmed by the Appellate Division, is not conclusive upon the Court of Appeals when it involves issuable or traversable facts stipulated by the parties, cannot apply when the stipulated facts are evidentiary merely. Continental Ins. Co. V. N. Y. & Harlem E. E. Co. (1907), 187 N". Y. 225. Jurisdiction. — The purpose and effect of the present Consti- tution is to prohibit the Court of Appeals from in any ease re- Eule 1] The Return. 79 viewing the question whetlier there is any, or sufficient, evidence to sustain a decision or undirected verdict, where there was an unanimous affirmance by the AiDpellate Division. Reed \. Mc- Cord (1899), 160 JST. Y. 330. The provision of the Constitution prohibiting the review of a unanimous decision of the Appellate Division that there is evi- dence supporting or tending to sustain a verdict not directed by the court has the eifect of withdrawing from the jurisdiction of the Court of Appeals, in case of such unanimous decision, the question of law whether there is any evidence tending to prove a fact. Meserole v. Hoyt (1899), 161 IST. Y. 59. The question of law, whether there is any evidence supporting or tending to sustain a finding or verdict on a question of fact, is not reviewable in the Court of Appeals, when the judgment has been affirmed unanimously by the Appellate Division, whatever may be the form of the exception. Cronin v. Lord (1899), 161 N. Y. 90. Unanimous affirmance by the Appellate Division of the award by the trial court of fee and rental damages, in an action against an elevated railroad company, precludes the Court of Appeals from questioning the amounts allowed. Kernochan v. Manhattan Ry. Co. (1900), 161 N. Y. 339. Where the Appellate Division has unanimously affirmed a judg- ment on an undirected verdict, and subsequently allows an appeal upon a question of law, the Court of Appeals has no power to examine or determine whether there is any or sufficient evidence to sustain the verdict. Lewis v. Long Island R. R. 'Co. (1909), 162 N. Y. 52. Findings of fact which have been unanimously affirmed by the Appellate Division cannot be questioned in the Court of Appeals as against evidence or without evidence. Lawrence v. Congrega- tional Church (1900), 164 'N. Y. 115. This restriction applies to a unanimous order of affirmance in a statutory proceeding to review an assessment in which a trial de novo has been had at Special Term, upon new evidence, as to the value of the relator's property, resulting in an affirmance of the assessment and a dismissal of the writ of certiorari. The effect of such an order is a determination that the finding of fact as expressed or necessarily implied in the decision of the Special 80 OouET OF Appeals Peactice. [Rule 1 Term is supported by evidence, and, therefore, is not tlie subject of review in the Court of Appeals. People ex rel. Sands v. Teitner (1903), 17'3 N. Y. 647. A judgment founded wholly upon immaterial evidence, every part of which was duly objected to and the objection fortified by an exception, is not protected by an unanimous affirmance, so as to preclude the Court of Appeals from considering the questions raised by the exceptions. Woods Motor-Vehicle Co. v. Brady (1905), 181 K Y. 145. Review of denial of nonsuit. — The Court of Appeals is pre- cluded from examining the correctness of the denial of a motion for a nonsuit, made at the close of the evidence, by an unanimous affirmance of the Appellate Division, which imports that there was evidence sufficient to sustain the verdict. Jones v. Eeilly (1903), 174 K Y. 97. Short form decision. — The rule, that where a judgment en- tered upon a short decision (Code, § 1022, before amendment of 1903), has been unanimously affirmed by the Appellate Division, the Court of Appeals is bound to assmne that the trial court found all the facts warranted by the evidence and necessary to support the judgment (Amherst College v. Pitch [1897], 151 N. Y. 282; People ex rel. Manhattan Ry. Co. v. Barker [1897], 152 K Y. 417), has no application where the judgment is unwarranted by any aspect of the finding contained in the decision. Miller v. K Y. & K S. Ry. Co. (1905), 183 K Y. 123. Refusal to find. — The Court of Appeals will not review a re- fusal by the trial court to find a fact, requested to be found under section 1023 of the Code, where such fact is directly in conflict with a fact actually found by the trial court as the basis of its decision, or would necessarily nullify such finding, and where the finding as made has the support of an unanimous affirmance by the Appellate Division. Le Gendre v. Scottish Ins. Co. (1906), 183 N. Y. 392. Where the affirmance of a judgment by the Appellate Division is not unanimous, exceptions to refusals of the trial court to make certain findings of fact as requested by the appellant may be con- sidered by the Court of Appeals ; and where the proposed findings are sustained by uncontradicted evidence, and the facts em- bodied therein are sufficient to relieve the appellant from lia- Eule 1] The Ebttoen. 81 bility, the judgment should be reversed and a new trial granted. Arnot V. Union Salt Co. (1906), 186 N. Y. 501. Pleadings. — Under this inhibition it is the evidence and the proceedings on the trial that the Court of Appeals will not ex- ■ amine to ascertain whether there are facts not found which rest on undisputed evidence or facts found which are unsupported by any evidence. But the pleadings being part of the judgment-roll land there being no constitutional prohibition of an examination ■thereof to ascertain what facts are admitted nor any statutory re- quirement that the findings shall include such facts they may and should be read by the court, in connection with a decision upon the issues, to ascertain whether the facts admitted and found sustain the judgment. Jacobson v. Brooklyn Lumber Co. (1906), 184 ]Sr. Y. 152. Effect of unanimous affirmance as to finding of fraud. — The unanimous affirmance by the Appellate Division, of that part of a judgment which sets aside certain confessions of judgment and transfers as fraudulent, is conclusive upon the Court of Appeals that a finding, that the creditors so preferred participated in the debtor's fraud is sustained by the evidence. Metcalf v. Moses (1900), 161 K Y. 587. Unanimous decision of city court. — This provision applies only to a unanimous decision of the Appellate Division of the Supreme Court, and has no application to a unanimous decision of the General Term of the City Court of New York; and hence a unanimous affirmance by such General Term does not limit the review by the Court of Appeals. Klein v. East Eiver Elec. Light Co. (190'5), 18i2 K Y. 27. Effect of unanimous affirmance of general decision. — A general decision on the merits in favor of the plaintiff, is equivalent to a general verdict, and where the judgment entered thereon is unani- mously affirmed by the Appellate Division, the Court of Appeals is precluded from examining the evidence as to its sufficiency, either to sustain the material facts alleged by the plaintiff, or to negative those alleged by the defendant in defense or by way of counterclaim. Consolidated Elec. Storage Co. v. Atlantic Trust Co. (1900), 161 W. Y. 605. Exception surviving unanimous affirmance. — An exception to the denial of a motion to dismiss the complaint, made on the 83 Court of Appeals Peactice. [Rule 1 pleadings and hence involving no consideration of the sufficiency of the evidence, survives an unanimous affirmance by the Appel- late Division of a judgment for the plaintiff. Sanders v. Saxton (1905), 182 W. Y. 477. Unavailing exception. — ^An exception to a finding of fact unanimously afiirmed by the Appellate Division presents no ques- tion reviewable by the Court of Appeals, and where the facts as found justify the conclusions of law, and no other exceptions ap- pear which present any questions of law, the judgment must be affirmed (Krekeler v. Aulbach [1902], 169 K Y. 372) ; and even if the error in the decision of the case upon which the appellant relies is predicated upon undisputed evidence, which is not con- tained within a finding of fact, it cannot be considered by the Court of Appeals. McManus v. McManus (1904), 179 N. Y. 338. Sufficiency of evidence. — Where there has been an unanimous decision by the Appellate Division, iipon a question of fact, the sufficiency of the evidence to sustain the judgment does not pre- sent a question of law reviewable by the Court of Appeals. Kennedy v. Mineola H. & F. Traction Co. (1901), 178 W. Y. 508, citing Szuchy v. Hillside C. & I. Co., 150 X. Y. 219 ; Am- herst College V. Ritch, 151 JST. Y. 282; People ex rel. Manhattan R. Co. V. Barker, 152 N. Y. 417 ; People ex rel. Broadway Im- provement Co. V. Barker, 155 K Y. 322 ; Harden v. Dorthy, 160 ISr. Y. 39 ; Reed v. MoCord, 160 N. Y. 330 ; Lewis v. Long Island R. R. Co., 162 N. Y. 52; Meserole v. Hojt, 161 K Y. 59; Cronin v. Lord, 161 K". Y. 90 ; Hilton v. Ernst, 161 X. Y. 226 ; Hutton V. Smith, 175 N". Y. 375. Order of dismissal. — An appeal cannot be taken to the Court of Appeals from an " order " of the Appellate Division dismissing an appeal from a judgment below, but a judgment of dismissal must be entered and an appeal taken from such judgment. Stevens v. Central Xat. Bank (1900), 162 K Y. 253. See, .also. Village of Champlain v. McCrea, 165 IS". Y. 264. Verdict against evidence. — In no case tried before a jury in which a motion for a new trial has been made, on the ground that the verdict is against the evidence, can the Court of Appeals entertain an appeal from an order of re^'crsal, unless it affirma- tively appears that the Appellate Division had affirmed the facts. Eule 1] The RETuuisr. 83 Allen V. Corn Exchange Bank, 181 I\T. y. 278. See, also. Matter of Jones, 181 N. y. 389. Jurisdiction in criminal appeals. The Code of Criminal Procedure provides as follows : Appeal in criminal case. § 517. When the juagment is of death the appeal must be taken direct to the Court of Appeals, and, upon the appeal, any actual decision of the court in an intermediate order or proceeding forming a part of the judgment- roll, as prescribed by section 485, may be reviewed. Appeal in other cases. § 519. An appeal may be taken from a judgment or order of the Appellate Division of the Supreme Court to the Court of Appeals in the following cases and no other: 1. From a, judgment affirming or reversing a judgment of conviction; 2. From a judgment affirming or reversing a, judgment for the defendant on a demurrer to the indictment, or from an order afurmiiig, vacating or reversing an order of the court arresting judgment; 3. From a final determination affecting a substantial right of the defendant. Stay upon appeal; reversal; judgment of death. § 528. An appeal to the Court of Appeals, from a judgment of the Appellate Division of the Supreme Court, affirming a judgment of con- viction, staj'S the execution of the judgment appealed from, upon filing, with the notice of appeal, a certificate of a judge of the Court of Ap- peals, or of a justice of the Appellate Division of the Supreme Court, that, in his opinion, there is reasonable doubt whether the judgment should stand, but not otherwise. When the judgment is of death, an appeal to the Court of Appeals stays the execution, of course, until the determina- tion of the appeal. When the judgment is of death, the Court of Appeals may order a new trial, if it he satisfied that the verdict was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below. Technical errors disregarded. § 542. After hearing the appeal, the court must give judgment, without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. Appeal from courts of special sessions, etc. § 771. The judgment of the Appellate Division of the Supreme Court upon the appeal [from minor courts] is final: except that where the original appeal was from a, judgment of commitment of a child, either party may appeal to the Court of Appeals in like manner as a defendant under section 519 of this Code. 84 CouET OF Appeals Peactice. [Rule 1 Appeal from New York Special Sessions. If any judgment or determination made by the said Court of Special Sessions [in the city of New York] on or after the said [first day of July, 1895] shall he adverse to the defendant, he may appeal therefrom to the Supreme Court in the same manner as from a judgment in an action prosecuted by indictment and may be admitted to bail upon an appeal in like manner, and if the judgment of the Supreme Court upon such an appeal shall be adverse to the defendant, he may appeal there- from to the Court of Appeals, as prescribed in section 519 of the Code of Criminal Procedure. In case of any such appeal to the Supreme Court or to the Court of Appeals, the procedure in, and the jurisdiction of, the said courts respectively, shall be the same as upon an appeal thereto from a judgment of conviction after indictment — [Laws of 1895, chap. 601, § 20.] Right of appeal. — There is no right of appeal in criminal actions except as conferred by statute. People v. Johnston (1907), 187 N". T. 319. Review of settlement of case. — The action of the trial justice in settling the case on an appeal from a judgment of death is reviewable by the Court of Appeals on an appeal by the defendant from an order of Special Term denying a motion for a resettle- ment, although there is no express statutory provision authorizing such review, since the power to hear and determine an appeal in the first instance in a capital case, conferred upon the Court of Appeals by section 517 of the Code of Criminal Procedure, neces- sarily implies the right to settle the preliminary practice so far as it is not fixed by statute. People v. Priori (1900), 163 E". Y. 99. Review of order denying neiv trial on ne.wly-discovered evi- dence. — An order denying a motion for a new trial upon the ground of newly-discovered evidence, made after a judgment of death and an appeal therefrom by the defendant and in time to include the proceedings in the case is, at his instance, reviewable by the Court of Appeals as an incident to the appeal, under sec- tion 517 of the Code of Criminal Procedure. Id. Review of order of reversal. — The Court of Appeals has no power to review a judgment of reversal in a criminal case unless it appears affirmatively in the body of the order that the court below has exercised its power and discretion to review the facts, and that, being satisfied with the judgment in that respect, the reversal was ordered for error of law only ; and an order of re- Eule 1] The Return. 85 versal that does not, upon its face, exclude the possibility that it was based upon an examination of the facts or made as matter of discretion presents no reviewable question of law. People v. O'Brien (1900), 164 K Y. 57. Jurisdiction. — The limitations of the Code of Civil Procedure upon the jurisdiction of the Court of Appeals have no applica- tion to criminal appeals, which are authorized by section 519 of the Code of Criminal Procedure, enacted since the present Con- stitution went into effect. By force of this section an appeal lies to the Court of Appeals as matter of right from a judgment affirming or reversing a judgment for the defendant on a demurrer to the indictment, notwithstanding the order is interlocutory. People v. Drayton (1901), 168 N. Y. 10. As a general rule, the Court of Appeals has no jurisdiction to hear an appeal from a judgment rendered by the Appellate Di- vision in a criminal action which originated in a Court of Special Sessions. People v. Johnston (1907), 187 IST. Y. 319. Exception essential. — The fact that the Appellate Division certifies that a judgment convicting the defendant of the crime of assault in the first degree, under an indictment for manslaughter in the first degree, was reversed " upon questions of law only," for the reason indicated in its opinion that the facts did not con- stitute the crime for which a conviction was had, does not enable the Court of Appeals to pass upon the question, in the absence of any exception taken upon the trial raising it. No court can create an error of law by certifying that there is one, and a ques- tion of law in a criminal case can be raised only by an exception ; the Appellate Division itself had no power to pass upon the ques- tion and its order must be reversed and the judgment of convic- tion affirmed. People v. Huson (1907), 187 IST. Y. 97. In a criminal case, except where the judgment is of death, the Court of Appeals is limited to the review of questions of law, and can take notice only of legal errors appearing in the record or raised by exceptions on the trial. Section 527 of the Code of Criminal Procedure applies only to the Appellate Division and section 526 only to appeals from judgments of death. People v. Grossman (1901), 168 N. Y. 47; People v. Sherlock (1901), 166 N. Y. 180; People v. Shattuck (1909), 194 N. Y. 424. The power conferred by section 528 may be properly exercised when it is apparent that the defendant has suffered gross injustice 86 CouET OF Appeals Practice. [Rule 2 by the admissiou of incompetent evidence upon the main and vital issue, even though his counsel failed to object to its recep- tion; but the provision of the Code was not intended to relieve counsel of the duty of objecting, and, in case their objection is overruled, of taking an exception, to the admission of incompe- tent evidence. The power is one to be exercised or withheld in the court's discretion, and where it is satisfied that the accused has had a fair trial and that he is guilty of the crime charged, a new trial will not be granted. P'eople v. Kennedy (1900), 164 ]Sr. Y. 449. See further under Eule VIII. Loss of exhibits. — Where during the preparation of the record on appeal from a conviction of murder in the first degree it is discovered that the original handwriting exhibits are lost and a search for the missing papers is without result, the Court of Appeals, in the exercise of the discretionary power to disregard errors or defects which do not affect the substantial rights of the defendant, conferred upon it by sections 528 and 542 of the Code of Criminal Procedure, will uphold the judgment and deny a new trial where the evidence without the writings in question is sufficient to support the verdict, and translations of such writings, none of which are attacked for incorrectness, are printed in the record, and are either established by defendant's admissions, duly proven, or are corroborated by circumstances of irresistible cogency. People v. StroUo (1908), 191 W. Y. 42. Appeal for clemency. — The fact that circumstances in a capital case, while not controlling the legal character of the crime, tend to diminish the defendant's moral fault, cannot be considered by the Court of Appeals ; and an appeal for clemency by reason thereof, must be addressed, not to the court, but to the Governor of the State. People v. Broncado (1907), 188 K Y. 150. EULE II. Further Return may be Ordered. If the return made by the [Clerk of the] court below shall be defective, either party may, on an affidavit, specifying the defect, and on notice to the opposite party, apply to one of the judges of this court for an order, that the clerk make a further return without delay. Kule 2] FuETHER Eeturn May be Okdeeed. 87 Amending return. The Code of Civil Procedure provides as foUov^s: § 725. A court to which a return is made by a, sheriff or other officer, or by a subordinate court or other tribunal, may, in its discretion, direct the return to be amended, in matter of form, either before or after judgment. § 1303. Where the appellant, seasonably and in good faith, serves the notice of appeal, either upon the clerk or upon the adverse party, or his attorney, but omits, through mistake, inadvertence, or excusable neglect, to serve it upon the other, or to do any other act, necessary to perfect the appeal, or to stay the execution of the judgment or order appealed from; the court in or to which the appeal is taken, upon proof, by affidavit, of the facts, may, in its discretion, permit the omission to be supplied, or an amend- ment to be made, upon such terms as justice requires. Defective return. Omitted 'papers. — The court may, without dismissing the ap- peal, allow the appellant to supply requisite papers omitted from the return. Beecher v. Conradt (Ct. App. 1885), 11 How. Pr. 181. But where the defect has originated from the misconduct of the appellant, the court may dismiss the appeal, instead of allowing an amendment. McGregor v. Comstock (1859), 19 K Y. 581. Exhibits. — An appellant is not bound to print matter proposed by the respondent as an amendment to the case, but disallowed by the trial judge. Hence, where the trial judge refused to direct certain exhibits to be printed entire, but required appellant to paste them in the appeal-book, if copies were furnished, or, in lieu thereof, directed that either party might refer to the originals on the argument, it was held that this direction held good until the final determination of the action, and that appellant should not be compelled to print such exhibits as part of the return to the Court of Appeals ; but such a practice is not to be encouraged. Kilmer v. N". Y. C. & H. R. E. E. Co. (1884), 94 X. Y. 495. The Court of Appeals has no jurisdiction to compel an appel- lant to attach to the return copies of documents which were not part of the record in the court below. If, for any reason, they ought to be made part of the record, a motion for that purpose should be made in the court below. States v. Cromwell (1887), 104 ^. Y. 664. Papers improperly inserted. — When a return contains papers which were not before the general term, a motion to correct the 88 CouET OF Appeals Practice. [Rule 2 return and to require the appellant to print a ease containing the return as so amended, is proper. Hobart v. Hobart (1881), 85 IST. Y. 637. (As to defective return, see also under Eule I.) Amending the record. Must be by court below. — The Court of Appeals has no power to amend a record transmitted to it for review, and any amend- ment must be sought in the court below (Kenyon v. IST. Y. C. & H. E. R. R Co. [1879], 76 IST. Y. 607); even although the stenographer of the trial court submits an affidavit stating that his notes of the trial were incorrectly printed. People v. Hoch (1896), 150 N. Y. 29a, 566. In Hoffman v. Manhattan Ey. Co. (1896), 149 :N". Y. .599, the Court of Appeals denied, for want of power, a motion to amend a notice of appeal from a final judgment by inserting a statement of intention to review an interlocutory judgment, where the time for appealing had expired. See Lavelle v. Skelley, 90 X. Y. 546; Fejdowski v. D. & H. C. Co. (1901), 168 X. Y. 500. Where the Court of Appeals can see that the failure of the return to show the court in which judgment was rendered, or to show such a judgment as is set forth in the notice of appeal, is probably a clerical error and that in fact a right of appeal exists, it may allow the return to be withdrawn with a view to the cor- rection of the record in the court below. Lahens v. Pielden (Ct. App. 1862), 15 Abb. Prac. 177. Resettlement of case. — The review in the Court of Appeals miist be upon the same case as that upon which the cause was decided below, and therefore there cannot be a general resettle- ment of the case for the purpose of appeal to the Court of Appeals, although it seems that a specific error, such as the omission of a word, or an exception to a decision or to some separate proposi- tion in the charge, may be corrected and the omission supplied. Catlin V. Cole (Supr. Ct. 1860), 19 How. Prac. 82 ; 10 Abb. Prac. 387 and note. The settlement of the case is matter of practice over which the court below has entire control and on which the Court of Appeals will make no order. That court may, however, decline to dismiss the appeal, where it seems to have merits, and give leave to the Rule 2] FuRTHEE Eetuen May bei Oej>eeed. 89 appellant to apply to the court below for a resettlement of the case, and to so amend the record as to bring up a case on which the Court of Appeals can examine the merits. Westcott v. Thompson (1858), 16 IST. Y. 613. And when, through the inad- vertence of counsel, the facts are so presented that it is impos- sible, without violating well-settled rules of practice, to do justice between the parties, the Court of Appeals has power to suspend judgment in order to enable the party, whose rights might other- wise siiffer, to apply to the court below for a resettlement of the case (Rice v. Isham [1863], 1 Keyes, 4:4 ) ; and the return, after amendment by resettlement, will be allowed to retain its original date of filing. Livingston v. Miller (Ct. App. 1852), 7 How. Prac. 219. But after argument and judgment, the Court of Appeals will not set aside the judgment and stay proceedings for an applica- tion to the court below to alter the statement of exceptions taken at the trial. Fitch v. Livingston (Ct. App. 1853), 1 How. Pr. 410. While the Court of Appeals cannot and will not dictate to the trial court how a case should be settled, it was held that it might reverse an order of general term affirming an order of special term refusing a resettlement, and grant motion for resettlement, in order that the trial judge might have an opportunity to resettle the case in accordance with the facts, so that the Appellate Court could decide the case upon a record which was absolutely correct. N. T. Rubber Co. v. Rothery (1889), 112 W. Y. 592. Amendment to shoiu reversal on facts. — It has been held that judgment would not be suspended after argument, for the purpose of applying to the general term for an order showing that its reversal was upon the facts as well as the law; a motion for that purpose should be made before argument or submission. Hamlin V. Sears (1880), 82 N". Y. 327. It has been held, however, that the general term had power, after appeal to the Court of Appeals, to make its record declare the truth as to its judgment, and so might amend an order of reversal by inserting a statement that its decision was made upon questions of fact (Guernsey v. Miller [1880], 80 E". Y. 181) ; and that the order as amended might be attached to the return (ISTat. City Bank v. N. Y. Gold Ex. Bank [1884], 97 K Y. 645; Rass v. Gleason [1888], 111 N. Y. 9'0 Court of Appeals Practice. [Rule 2 683) ; but the return could not be so amended until the general term had amended its original order. Shultz v. Hoagland (Ct. App. 1880), 11 WMy. Dig. 294. Power of Appellate Division to amend General Term order of reversal. — ■ The Appellate Division of the Supreme Court has jurisdiction to so amend, in accordance with the facts, an order of reversal made by the late general term of that court as to render the decision of the general term reviewable by the Court of Appeals. Judson v. Central Vermont R. K. Co. (189'9), 158 N. Y. 597. And see Eyder v. Brooklyn El. E. R Co. (1899), 158 N. Y. 707. The Appellate Division has power, even after sending down its remittitur of an order of reversal and while an appeal there- from is pending in the Court of Appeals, to amend the order by inserting that the reversal was on a question of fact, and the exercise of that power is not reviewable by the Court of Appeals. Health Dept. v. Dassori (1899), 159 IST. Y. 245. The pendency of an appeal in the Court of Appeals is no bar to a motion in the Appellate Division for the amendment of its order of reversal so as to show that the reversal was upon the facts as well as upon the law, and, therefore, an application to the Court of Appeals for an order directing the transmission of the return on appeal to the Supreme Court, so that such motion may be made, is unnecessary and should be denied. Birnbaum v. May (1902), 170 K Y. 314. Power of court below as to amendments. The court below has power to correct any mistake in the record and to conform it to the facts. Baker v. Home Life Ins. Co. (1875), 63 ISr. Y. 630. The court below, while an appeal is pending in the Court of Appeals, has still control over the judgment in regard to making amendments, and the judgment is regarded as remaining there for all purposes of amendment. Judson v. Gray (Ct. App. 1859), 17 How Pr. 289. Remitting return for amendment. — A motion to remit the re- turn for the purpose of permitting the court below to amend the record, if it should desire to do so, is unnecessary and should be denied, since that court may make such amendment as it sees fit, and order it to be filed with the original return in the Court Hule 2] Further Return May be Ordered. 91 of Appeals, and on such filing it is regarded as a part of the orig- inal return. Peterson v. Swan (1890), 119 'N. Y. 662; Birn- baum V. May (1902), 170 K Y. 314, and cases there cited. The court below has power to correct errors in a record, after appeal to the Court of Appeals, and return it as corrected, with- out first applying to the Court of Appeals to remit it for correc- tion. Eew V. Barker (1823), 2 Cow. 408; Luysten v. Sniffen (1847), 1 Barb. 428, 3 How. Prac. 250 ; Witbeck v. Waine (Supr. Ct. 1853), 8 How. Prac. 433. But it was held in Adams v. Bush (Supr. Ct. 1865), 2 Abb. Prac. (N. S.) 118, that after appeal taken to the Court of Appeals and case made and returned to the clerk of that court, the court below would not entertain a motion to correct the case, unless it had been sent back to it for that purpose. Statement of events of trial. — It has been held that a case on appeal from a decision at circuit should be a transcript of the proceedings upon the trial, and that the General Term had no power to direct such an alteration of the record as would cause it to state untruly the events of the trial. Carter v. Beckwith (1880), 82 ]Sr. Y. 83. Change in composition of court. — It has been held that a Gen- eral Term might amend the record of its decision, so as to con- form to the decision actually made, although there had been in the meantime a change in the justices composing the General Term. Buckingham v. Dickinson (1874), 54 ]S^ Y. 682. And, so also, with the Appellate Division. MacArdell v. Olcott (1907), 189 K Y. 368. Power of Court of Appeals to make amendments, under § 723 of Code. Section 722 of the Code of Civil Procedure provides as follows : Each of the omissions, imperfections, defects and variances, specified in the last section, and any other of like nature, not being against the right and justice of the matter, and not altering the issue between the parties, or the trial, must, when necessary, be supplied, and the proceeding amended, hy the court wherein the judgment is rendered, or by an appellate court. Section 723 of the Code of Civil Procedure is as follows : The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terras 92 Court of Appeals PK.iCTiCE. [Rule 2 as it deems just, a-mend any process, pleading or other proceeding, by adding or striking ooit the name of a. person as a, party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to the case; or, where the amendment does not change substantially the claim or defence, by conforming the pleading or other proceedings to the facts proved. And, in every stage of the action, the court must disregard an error or defect in the pleadings or other proceedings, which does not affect the substantial rights of the adverse party. When amending a pleading or permitting the service of an amended or supplemental pleading in a case which is on the general calendar of issues of fact, the court may direct that the case retain the place upon such calendar which it occupied before the amendment or new pleading was allowed, and that the proceedings had upon the amendment or supplemental pleadings shall not affect the place of the case upon such calendar, or render necessary the service of a new notice trf trial. Under tliis section, an amendment of a pleading may be al- lowed in the Court of Appeals, to sustain the ju'dgment (Bate v. Graham [1854], 11 N. Y. 237; Pratt v. Hud. Riv. R. R. Co. [1860], 21 ISr. y. 305; Haddow v. Lundy [1874], 59 K T. 320; Reeder v. Sayre [1877], 70 IST. Y. 180) ; but not to reverse it. Volkeningv. De Graaf (1880), 81 jSr. Y. 268. But in Fitch V. Mayor of N". Y. (1882), 88 N. Y. 500, the court says that if the section applies to the Court of Appeals, the power should not be exercised unless it is plain that no substantial right of the ad- verse party would be affected. In Bank of Havana v. Magee (1859), 20 K". Y. 355, 360, it is said that the provision that in every stage of the action the court must disregard an error or defect in the pleadings or other pro- ceedings, which does not affect the substantial rights of the ad- verse party, was addressed to the Court of Appeals equally with the court of original jurisdiction; and in Cardell v. MciSreill (1860), 21 ]Sr. Y. 336, 341, that the Court of Appeals does not reverse judgments upon an objection based upon a variance be- tween the complaint and the proof which might have been amended if necessary. In Reeder v. Sayre (1877), 70 IST. Y. 180 (supra), it is said that the power to amend the pleadings given by section 723 is great, and that the real limitation seems to be that the amend- ment shall not bring in a new cause of action. In Martin v. Home Bank (1901), 160 N. Y. 190, it is held that in an action to recover on a bank check court may permit complaint to be amended to conform to proof. 'Rule 2] FuETHEB Eeturn Mat be Oedeejed. 93 In Smitli V. Mayor of IST. Y. (1868), 37 N. Y. 518, 521, an action brought to recover fees claimed to be attached to a municipal office, it was suggested on argument that the complaint might then be so amended as to change the form of the action to one for money had and received ; but the court said that it had never kaown the exercise of such a power by the Court of Appeals, and it was not aware of any authority for it, and that in no event could such amendment be granted except on motion upon notice, on which terms could be imposed. In Montgomery v. Buffalo Railway Co. (1899), 158 E". Y. 708, the Court of Appeals granted an unopposed motion to amend the return on appeal from an order of reversal, by inserting in the notice of appeal the words " as amended by the Appellate Di- vision," and a stipulation for judgment absolute. In Ackley v. Tarbox (1864), 31 N. Y. 564, the Court of Ap- peals amended the record by striking out the name of an unneces- sary plaintiff. Whether an Appellate Court can amend a bill of exceptions even in matter of form, is doubted in Onondaga County Mut. Ins. Co. V. Minard (1848), 2 E". Y. 98, and the Court of Appeals cannot correct an improper insertion of findings in the original case on appeal. Binghamton Opera House Co. v. City of Bing- hamton (1898), 156 IST. Y. 651. Kecords not in return. Record evidence not in the return may be considered by the Court of Appeals to sustain a decision under review, but not to reverse it. Wines v. Mayor of K Y. (1877), 70 N. Y. 613; Matter of Cooper (1883), 93 K Y. 507; Day v. Town of New Lots (1887), 107 N. Y. 148; Dunham v. Townshend (1890), 118 ]Sr. Y. 281; Atlantic Ave. R. E. Co. v. Johnson (1892), 134 K Y. 375; People ex rel. Warschauer v. Dalton (1899), 159 N. Y. 235; Stemmler v. Mayor of K Y. (1904), 179 K Y. 473. Amending return in criminal cases. Application to amend return should be made to the court where the judgment was rendered (Rew v. Barker [1873], 2 Cow. 408) ; on order of a judge of the Court of Appeals, under Rule II. People V. McTameney (1883), 30 Hun, 505. 94 Court of Appeals Pea.ctice. [Rule 3 RULE III. Attorneys and Guardians Below to Continue to Act. The attorneys and guardians ad litem of the respective parties in the court below shall be deemed the attorneys and guardians of the same parties respectively, in this court, until others shall be retained or appointed, and notice thereof shall be served on the adverse party. Authority of attorney. The authority of an attorney who is employed to prosecute or defend a suit, in the absence of special circumstances, continues, by virtue of his original retainer, until it is finally determined;, and in the absence of proof to the contrary, the presumption is that it continues until the litigation has ended. Bathgate v. Raskin (1875), 59 N. Y. 5'33. Death of client. — The death of the client revokes the authority of the attorney, and he is not required or authorized to do any- thing further in the action except upon the retainer of the legal representative. Adams v. JSTellis (Supr. Ct. 1880), 59 How. Prac. 385; Lapaugh v. Wilson (1887), 43 Hun, 619. The attorney for the ancestor does not become the attorney for the heir without a new appointment. Putnam v. Van Buren (Supr. Ct. 1852), 7 How. Prac. 31. Where, after the death of a party, notice of appeal from an order is served upon his attorney, the appellant cannot object, on motion by such attorney to dismiss the appeal, that he has no standing in court because of the death of his client. Having called the attorney into court as the proper representative of the deceased, the appellant may not object to his being heard. Mat- ter of Beckwith (1882), 90 N. Y. 667. Unauthorized appearance. — An unauthorized appearance by an attorney will not bind the party so as to deprive him of his right to appeal. Bates v. Voorhees (1859), 20 IST. Y. 525. Appeal by new attorney. There are decisions to the effect that an appeal is in the nature of a new action and may be taken and prosecuted by a new at- torney without an order of substitution. McLaren v. Charrier Eule 3] Attoeneys and Guaediajs's to Act. 95 (1836), 5 Paige, 530; Pratt v. Allen (Supr. Ct. of Buffalo, 1858), 19 How. Prac. 450, 45i6; Ward v. Sands (Sup. Ct. 1881), 10 Abb. ]Sr. G. 60; Webb v. Milne (IST. Y. Supr. Ct. 1886), 10 Civ. Proc. R. 27. The contrary yiew as to the nature of an appeal is, however, maintained in Seely v. Prichard (jST. Y. Supr. Ct. 1854), 12 Legal Obs. 245; Fry v. Bennett (N. Y. Supr. Ct. 1858), Y Abb. Prac. 365; Miller v. Shall (1875), 67 Barb. 446; Theirry v. Crawford (1884), 33 Hun, 366, and Shuler v. Max- well (1885)-, 38 Hun, 240 — in the last of which cases, in com- menting upon this rule of the Court of Appeals (then Rule IV), it is said that the rule declares, in effect, that on appeal to the Court of Appeals from another court the power of the attorney continues although judgment below has been entered, and, there- fore, that another attorney than the attorney of record at the time of the recovery of judgment cannot serve a notice of appeal until he has been substituted. In Pensa v. Pensa (N. Y. Supr. Ct. 1893), 3 Misc. Eep. 417, it is said, overruling Webb v. Milne (supra), that an appeal from a judgment is not to be regarded as a new action or proceeding to enforce the judgment within the meaning of the decisions to the effect that in such a case a new attorney, duly authorized for the purpose, may appear without formal substitution, but it is a proceeding in the action for the correction of errors alleged to have been committed and to effect, if possible, the reversal of the judgment for error, and that the clear weight of authority is that the appeal cannot be taken by an attorney who has not been sub- stituted in place of the attorney who appeared in the action. See Magnolia M. Co. v. Sterlingworth Co. (1899), 37 App. Div. 366, where it was held that under this rule a party who con- templates an appeal to the Court of Appeals may, without obtain- ing an order of substitution from that court, retain a new attorney and upon such retainer the authority of the former attorney ceases. Substitution of attorneys; order. To make a substitution of attorneys effective, an order should be entered and notice thereof served on the opposite attorney. Robinson V. McClellan (Supr. Ct. 1845), 1 How. Prac. 90; Dorlon V. Lewis (Supr. Ct. 1852), 7 How. Prac. 132; Bogardus v. Richt- meyer (Supr. Ct. 1856), 3 Abb. Prac. 179; Parke v. City of Wil- 96 OouET OF Appeals Peactice. [Rule 3 liamsburgh (Supr. Ct. 1&56), 13 How. Prac. 250; Miller v. Shall (1875), 67 Biarb. 446; Krekeler v. Thaule (N. Y. Com. Pr. 1875), 49 How. Prac. 138. Order should be obtained in Court of Appeals. — After the filing of the return on appeal, a substitution of attorneys for a party should be made by an order of the Court of Appeals, not of the court below. Squire v. McDonald (1893), 138 N. Y. 554. The fact, however, that an attorney for a respondent, who has been ,authorized to appear for him, has failed to proceed in a regular manner to cause his substitution by order of the Court of Appeals, does not preclude that court from acting on a motion made by him on behalf of the respondent to dismiss the ap- peal. Id. Laches. In McElwain v. Erie Eailway Co. (1877), 71 ]\". Y. 600, where an appeal brought in 1864 had been dismissed in 1874 for want of prosecution, under chapter 9 of Laws of 1873, and the appellant's attorney of record had died in 1866, and no attempt was made to substitute another attorney until 1877, it was held that the laches of the appellant presented an insuperable obstacle to granting a motion to vacate the dismissal of the appeal. Death, disability or removal of attorney, etc. The Code of Civil Procedure provides as follows : Death or disability of attorney; proceedings thereupon. § 65. If an attorney dies, is removed or suspended, or otherwise be- comes disabled to act, at any time before judgment in an action, no further proceeding shall be taken in the action, against the party for whom he appeared, until thirty days after notice to appoint another attorney, has been given to that party, either personally or in such other manner as the court directs. Proceedings, if attorney or party not found. § 1302. If the attorney for the adverse party is dead; or if he has been removed, and notice of the removal has been served upon the ap- pellant's attorney, and another attorney has not been substituted in his place; or if, for any reason, service of a notice of appeal, upon the proper attorney for the adverse party, cannot, with due diligence, be made within the State, the notice of appeal may be served upon the respondent in the manner prescribed by law for serving it upon an attorney. If personal service upon the respondent cannot, with due diligence, be so Eule 3] Attorneys axd Guabdians to Act. 97 made within tlie State, tlie notice of appeal may be served upon liim, and notice of the subsequent proceedings may be given to him, as directed by a judge of the court, in or to which the appeal is taken. Proceedings stayed. — Where, imder section 65, notice to ap- point another attorney is served upon a party whose attorney has died, all proceedings are stayed for thirty days, and a motion to dismiss an appeal for failure to appoint an attorney, made within that time, is premature. Hickox v. Weaver (1878), 15 Hun, 375. Removal from the State. — Papers cannot he served upon an attorney after he has become a resident of another State [except where residence in another State is permitted to an attorney practicing in this State hj section 60 of the Code] (Diefendorf V. House [Supr. Ct. 1854], 9 How Pr. 243), and his name can no longer be used in conducting the suit, even by his law partner. Chautauqua County Bk. v. Eisley (Supr. Ct. 1844), 6 Hill, 375. Notice to "party -personally. — Where the appellant's attorney has removed from the State and notice has been given to the party to appoint another attorney, a motion to dismiss the appeal cannot be made without notice to the appellant personally. Jewell V. Schouten (1848), 1 N. Y. 241. Where the attorney for a party has died, and due notice has been given to such party to appoint a new attorney, which he neglects to do, notice of any proceeding in the action is properly given to the party personally. Hoffman v. Rowley (Supr. Ct. 1862), 13 Abb. Prac. 399 ; Chilson v. Howe (Supr. Ct. 1889), 17 Civ. Proc. R. 86. Application of section 1302 to respondent. — It seems that where, after an appeal, the attorney for the appellant dies, the respondent may proceed in the same manner in which it is pro- vided in section 1302 that the appellant may proceed. Hickox v. Weaver (1878), 15 Hun, 375. Substitution of parties on appeal. The Code of Civil Procedure provides as follows: When a person entitled to become a party may appeal. § 1296. A person aggrieved, who is not a party, but is entitled by law to be substituted, in place of a party; or who has acquired since the making of the order, or the rendering of the judgment appealed from, an interest which would have entitled him to be so substituted, if it had been previously ac- quired, may also appeal, as prescribed in this chapter, for an appeal by a 7 98 Court of Appeals Practice. [Eule 3 party. But the appeal cannot be heard, until he has been substituted in place of the party; and if he unreasonably neglects to procure an order of substitution, the appeal may be dismissed, upon motion of the respondent. Appeal when adverse party has died. § 1297. Where the adverse party has died, since the making of the order, or the rendering of the judgment appealed from, or where the judgment appealed from was rendered, after his death, in a case prescribed by law, an appeal may be taken, as if he was living; but it cannot be heard', until the heir, devisee, executor, or administrator, as the case requires, has been substituted as the respondent. In such a case, an undertaking required to perfect the appeal, or to stay the execution of the judgment or order appealed from, must recite the fact of the adverse party's death; and the undertaking enures, after sub- stitution, to the benefit of the person substituted. Proceedings, when party dies pending appeal. * § 1298. Where either party to an appeal dies, before the appeal is heard, * * * if an order, substituting another person in his place, is not made, within three months after his death, * * * the court, in which the appeal is pending may, in its discretion, make an order, requiring all persons interested in the decedent's estate, to show cause before it, why the judg- ment or order appealed from should not be reversed or affirmed, or the appeal dismissed, as the case requires. The order must specify a day, when cause is to be shown, which must be not less than six months after making the order; and it must designate the mode of giving notice to the persons inter- ested. Upon the return day of the order, or at a subsequent day, appointed by the court, if the proper person has not been substituted, the court, upon proof, by affidavit, that notice has been given, as required by the order, may reverse or affirm the judgment or order appealed from, or dismiss the appeal, or make such further order in the premises, as justice requires. Order of substitution. § 1299. Where the appeal is from one court to another, an application for an order of substitution, as prescribed by the last three sections, must be made to the appellate court. Where personal service of notice of application for an order has been made, within the State, upoa the proper representa- tive of the decedent, an order of substitution may be made, upon the appli- cation of the svu'viving party. Order of substitution. — Before the enactment of section 1299 requiring the application for order of substitution to be made to the appellate court, it was held that where a party in a cause died after the return had been filed in the Court of Appeals, that court, having obtained jurisdiction, had the power to allow his legal representative to be substituted. Hastings v. McKinley * See also sections 757 and 758. Rule 3] Attorneys and Guaeuians to Act. 99 (Ct. App. 1853), 8 How. Prac. 175, citing Eogers v. Patterson (1834), 4 Paige, 413. ■Section 1299' is broad enough to permit a surviving adverse party to enforce substitution thereunder, when it has not been procured at the instance of the personal representative of the deceased party himself, or of a party associated in interest with the decedent, if there be one. Eeed v. Farrand (1910), 198 K Y. 207. An improper order of revival made by the Court of Appeals eaimot be collaterally attacked, but can be remedied only by an application to vacate the order. Riley v. Gritterman (Supr. Ct. 1889), 10 N. Y. Supp. 38. Death between hearing and decision. — To make applicable the provisions of section 1297 of the Code in regard to appeals from orders where a party " has died since the making of an order,"' it is necessary for the party moving under that section to treat the order appealed from as made before the death; and where the subject of the order was argued before the death of the party, but decided thereafter, the court may amend the date of its order nunc pro tunc so as to make it bear date as of a day prior to the- death. Carter v. Beckwith (1880), 82 IST. Y. 83; Matter of Beckwith (1882), 87 IsT. Y. 503; Layton v. Kraft (1909), 195 N. Y. 525; Adams v. Bristol (1909), 196 S". Y. 510. And see Blake v. Griswold (1887), 104 N. Y. 613. Instances of granting and of refusing substitution. — ^Substitu- tion vsdll not be ordered in the Court of Appeals merely on the ground that the party asking it has obtained a judgment of the court below, in a cross-action, declaring him entitled to be sub- stituted as plaintiff and to control the action — while an appeal is pending from such judgTuent. Glenville Woolen Co. v. Ripley (Gt. App. 1870), 11 Abb. Prac. (IST. 'S.) 87. Where a motion was made to substitute the personal repre- sentative of a surety on a joint promissory note against whom and his principal a joint judgment had been obtained, as defend- ant in his stead, he having died after affirmance by the General Term and during the pendency of appeal to the Court of Appeals, upon which appeal an undertaking staying execution had been given, it was held that the motion must be denied; that there could be no propriety in the substitution, as the judgment could 100 Court of Appeals Peactice. [Rule 3 never be enforced or properly affirmed (since the estate of the surety was, on his death, discharged from payment of the note) ; that the appeal could not be continued simply for the purpose of enabling the plaintiff, in case of afBlrmance, to bring an action upon the undertaking, as there could be no liability upon the undertaking after the judgment had been discharged, either by act of the parties or operation of law. Risley v. Brown (1876), 67 K Y. 160. In an action for a penalty under the General Manufacturing Act of 1848, it seems that, until the substitution of plaintiff's representative on his death, an appeal from judgment may not be heard. Where, however, an appeal to the Court of Appeals was heard without knowledge of the death and the judgment was affirmed, it was held that on granting a motion for substitution the court could affirm the judgment in favor of the substituted representative. Blake v. Griswold (1887), 104 K". T. 613. Il; seems that in case the death of a party in an action for a penalty under the General Manufacturing Act occurs while an appeal is pending to the Court of Appeals from an order reversing the judgment, and the legal representatives of the decedent are not substituted, the Court of Appeals must take action as pre- scribed by section 1298 of the Code. Carr v. Eischer (1890), 119 N. Y. 117. On the death of the appellant in an action to recover chattels before argument of the appeal, the Court of Appeals may revive the action in the name of appellant's assignee for the benefit of creditors. Eiley v. Gitterman (Supr. Ct. 1889), 10 iN". Y. Supp. 38. An executor of an assignee for the benefit of creditors is not entitled to be substituted as plaintiff in an action pending in the Court of Appeals, brought by the decedent as such assignee unless the executor has been substituted as assignee. Steinhouser v. Mason (1892), 135 N. Y. 63r.. Substitution below; objection to. — It is too late to first object in the Court of Appeals to a substitution of parties made in the court below and recognized by the objector by his having appealed the case as against the substituted party. Griffin v. Helmbold (1878), 72 N. Y. 437. Rule 4] Appellant to Make a Case — Its Foem. 101 Practice of clerk's office as to substitutions. After an appeal to the Court of Appeals has been perfected, all orders of substitution, both of attorneys and of parties, should be obtained from that court. When an application for substitu- tion of attorneys is on consent, the consent should be signed by the original attorney and signed and acknowledged by the party. When an application for substitution of parties is on consent, the consent should be signed by all the attorneys in the action and signed and acknowledged by the party to be substituted. The order of substitution, when made, can then be attached to the record, and be properly entered in the register of the cause, which is opened on the receipt of the return. If order of substitution is obtained in the court below before appeal perfected, a copy should be transmitted to the Court of Appeals with the return. It sometimes happens that after the appeal has been perfected and return transmitted, orders of submission are obtained in the court below and a copy sent to the clerk of the Court of Appeals. An order so obtained is not considered a part of the record of the cause, and is not noted in the remittitur, as are orders of substitution obtained in the Court of Appeals after return filed. On receipt of consents for substitution, properly signed, orders are entered accordingly, by the clerk, as of course. ETJLE IV. Appellant to Make a Case — Its Form. In all calendar canses a case shall be made by the ap- pellant, which shall consist of a copy of the return,, and the reasons of the court below for its judgTuent, or an affidavit that the same cannot be procured, together with an index to the pleadings, exhibits, depositions and other principal matters. Every opinion in the cause at [the] special term, as well as at the Appellate Division of the Supreme Court, relating to the questions involved in the appeal is included by the foregoing provision. 102 Court of Appeals Peactice. [Rule 4 Case, copy of return. The " case " in the Court of Appeals being a copy of the return, with opinions and index added, its form and contents are determined by those of the return, as to which see under Rules I and II. Complete copy required. — If the return is certified by the clerk of the court below, the printed case is defective if it does not contain a copy of the certificate contained in the return; a statement, " return certified as required by law," cannot be ac- cepted as a substitute. Matter of Bailey (1881), 8,5 'B. Y. 629. Where, however, nothing was omitted from what purported to be a copy of the certificate printed in the case but the word ■' copy " and the name of the clerk, the cases were allowed to be amended, in Farmers' L. & T. Co. v. Carroll (1850), 2 X. Y. Sfje. A reference to an opinion in the action, as reported in the Supreme Court Reports, is not a substitute for com- pliance with the rule requiring the printing in a case of every opinion of the court below. Bastable v. City of Syracuse (1878), 72 K Y. 64. Opinion of court below. Facts in, not regarded. — Facts stated in the opinion of the court below or elsewhere, not found in the return, cannot be re- garded. McGregor v. Buell (1864), 1 Keyes, 153. Recourse cannot be had to the opinion of the Appellate Di- vision to establish the fact that an affirmance was by a unanimoiis decision. Kaplan v. N. Y. Biscuit Co. (1896), 151 K Y. 171. The general rule. — Opinions of courts form no part of the record (Rosenstein v. Fox [1896], 150 N. Y. 354); and state- ments therein as to what the courts below did or did not pass upon cannot be considered by the Court of Appeals, imless the judgment appealed from so refers to the opinion as to make it a part of the record. Koehler v. Hughes (1896), 148 IST. Y. 507. The Court of Appeals does not look to the opinions below for the purpose of determining the contents of an order, finding or judgment, or its meaning. It only examines such opinions for the purpose of ascertaining the arguments made and the reasons 'Rale 4] Appellant to Make a Case — Its Form. 103 given in support of the rulings and determinations made by the court whose order or judgment is under review. Morehouse v. Brooklyn Heights E. E. Co. (1906), 185 N. Y. 520. The opinion of the court below cannot be looked into by the Court of Appeals to ascertain the reasons or grounds of the de- cision appealed from (Snebley v. Conner [1879], 78 N. Y. 218; Clarke v. Lourie [1880], 82 N. Y. 580; People ex rel. Bdway. Imp. Co. V. Barker [1898], 155 N. Y. 322); nor to determine whether a reversal was solely upon questions of law (Harris v. Burdett [1878], 73 N. Y. 136; People v. B:oas [1883], 92 N. Y. 560; Spence v. Ham [1900], 163 N. Y. 220; Hinckel v. Stevens [1900], 165 iST. Y. 171) ; nor to alter the discretionary character of an order dismissing a writ of certiorari (People ex rel. Coler V. Lord [1898], 157 N. Y. 408) ; nor to discover the ground upon which a mandamus was refused. People ex rel. Jacobus v. Van Wyck (1899), 157 K Y. 495. Where an order and judgment (if affirmance below are silent as to their grounds, the opinions of the courts below cannot be considered by the Court of Appeals for the purpose of determining them. Eandall v. JnT. Y. Elevated E. E. Co. (1896), 149 N". Y. 211. When a record, on appeal to the Court of Appeals, contains proposed findings, marked " found," or " refused," respectively, without any statement of the ground or reason, followed by an order and judgment of unqualified affirmance by the General Term containing no reference to any opinion, the state of the case is not affected by the fact that an opinion of the trial judge states that he refused certain findings because he deemed them immaterial, and the opinion of the General Term states that, owing to a defective certificate to the case, as settled, it was pre- cluded from reviewing the qiiestions of fact. Koehler v. Hughes (1896), 148 K Y. 507. The opinion of the General Term is not conclusive in the Court of Appeals on the question as to whether the former court refused to review the facts upon appeal from a judgment entered upon the report of a referee. Verplanck v. l\rember (1878), 74 IST. Y. 620. A statement in the opinion of the Appellate Division of the ground, of its decision is controlled by the statement in its order 104 'Court of Appeals Peactice. [Kule 4 of reversal, in case of a conflict or inconsistency between them. Spies V. Lockwood (1901), 1&5 N. Y. 481. It has been held that where, from the evidence appearing in the record, on appeal from an order denying an application for a writ of mandamus, the court below might have refused the appli- cation in the proper exercise of its discretion, the Court of Appeals would not look into the opinion of the General Term to ascertain if the writ was refused on a question of law only. People ex rel. Durant Land Improvement Co. v. Jeroloman (1893), 139 ISr. Y. 14. It was held that when on appeal to the Court of Appeals from an order of General Term ^affirming an order of Special Term which denied a motion for a bill of particulars, the order did not state the ground for the denial, the opinion of the General Term could not be looked to to ascertain the ground. C-ohn v. Baldwin (1894), 141 K y. 563. Exceptions to the general rule. — While the Court of Appeals does not refer to the opinion of the court below, as a general rule, to learn what is the judgment of the court, as the Court of Ap- peals must act upon the record and the opinion forms no part of the record proper, still in a case which involves an inquiry into the power of the court below to correct its records so that they may express its purpose, the Court of Appeals will look at the opinion so as to learn what such purpose was. Salmon v. Gedney (18^8), 75 IST. Y. 479. ISTotwithstanding the general rule that an Appellate Court is not to look beyond the order appealed from to ascertain the ground of judgment, it has been held that it may look into the opinion of the court below when the terms of the order are am- biguous (Townsend v. Nebenzhal [1880], 81 JST. Y. 644) ; or when the order itself refers to the opinion and thus makes it, in effect, a part of the record. Tolman v. S., B. & N. Y. E. E. Co. (1883), 92 N. Y. 353; Snyder v. Snyder (1884), 96 X. Y. 88; and when an order certifying a question for review expressly refers to the opinion of the Appellate Division, the opinion becomes a part of the record and can be resorted to by the Court of Appeals for the purpose of ascertaining the ground of the decision ap- pealed from. Pringle v. Long Island^R. E. Co. (1898), 157 IST. Y. 100, but this practice is now discountenanced. Matter of Rule 4] Appellant to Make a Case — Its Fokm. 105 Sandy (1896), 148 N. Y. 403; Townsend v. Bell (1901), 167 N. Y. 462. Opinion embodied in order. — ^A certificate of the General Term stating that a reversal was upon the grounds stated in its opinion, is not .a compliance with the requirement of section 1338 of the Code of the statement, in the order of reversal, that the reversal was upon the facts (Matter of Sandy [1896], 148 'H. Y. 403) ; nor is the embodiment of the opinion of the Appellate Division in the order of reversal a compliance with that section. Townsend V. Bell (1901), 167 JST. Y. 462. While, on appeal from an order which expresses the grounds upon which it was put, but the expression is coupled with phrases that make doubt, the opinion may be referred to (Tilton v. Beecher [1874], 59 W. Y. 176, 182) ; yet where no ground ap- pears in the order it cannot be qualified in its operation and effect by reference to the opinion. Fisher v. Gould (1880), 81 IST. Y. 228, citing Hewlett v. Wood (1876), 67 JST. Y. 394, and disap- proving dictum in Tracy v. Altmyer (1871), 46 IST. Y. 598. Tn that case (Tracy v. Altmyer), where an order denied a motion for a new trial, upon the ground of surprise and newly discovered evidence, and from the Special Term opinion it appeared that the motion was denied solely upon the ground that it could not be made after the entry of judgment, it had been said: " This may, by this court, be taken as suiEcient evidence that the merits of the application were not considered by the Special Term." Wrong reason for correct decisions. — The fact that the judg- ment of the Trial Court was sustained by the Appellate Division on a different theory than that adopted by the Court of Appeals is no obstacle to its afiirmance there; for a correct decision will not be reversed on appeal because founded upon a wrong reason, at least unless where the ground of decision can be seen to have misled party to his injury. Ward v. Hasbrouck (1902), 169 IT. Y. 407. Attorney's lien on cases. — An attorney has a lien on the printed cases on appeal in his hands for legal services in the action, although his client had paid the printing disbursements. Matter of Hollins (1910), 197 K Y. 360. 100 CoijET OF Appeals Peactice. [Eule 4 Case in capital causes. Tie Code of Criminal Procedure provides as follows: § 458. When a party intends to appeal from a judgment rendered after the trial of an issue of fact he must, except as otherwise prescribed by law, make a case and procure the same to be settled and signed, by the judge or justice, by or before whom the action was tried, aa prescribed in the general rules of practice ; or, in case of the death or disability of such judge or justice, in such manner as the appellate court directs. The case must contain so much of the evidence, and other proceedings upon the trial, as is material to the questions to be raised thereby, and also the exceptions taken by the party making the case; and in a case where a special question is submitted to the jury, such exceptions taken by any party to the action as shall be necessary to determine whether there should be a new party, if the judgment be reversed. If it afterwards becomes necessary to separate the exceptions, the separation may he made and the exceptions may be stated with so much of the evidence, and other proceedings as is material to the questions raised by them, in a case prepared and settled as directed by the general rules of practice, or in the absence of directions therein, by the court, upon motion. [Amended by chap. 427 of 1897.] § 485, sub. 8. When the judgment is of death, the clerk, upon the settling and filing of the case, must forthwith cause to be prepared and printed, and forwarded to the clerk of the Court of Appeals, the number of copies of the judgment-roll which are required by the rules of the Court of Appeals, which shall form the case and exceptions upon which ^the appeal shall be heard, and three copies shall also be furnished to the defendant's attorney, three to the district attorney, and one to the governor of the State, and the remainder shall be distributed according to the rules of the Court of Appeals. * * * [Amended by chap. 427 of 1897.] Upon appeal in a case where the indictment was found after- chapter 427 of the Laws of 1897 went into effect, a case should be made, settled and signed, containing only so much of the evi- dence and proceedings as is material to the questions to be raised and it is improper to bring up a transcript of the stenographer's minutes. People v. Barone (1900), 161 X. Y. 475. Case part of judgment-roll ; review of settlement. — A case on appeal from a judgment of death, whenever filed, even if after a judgment-roll has been made up in the first instance, becomes, by operation of law, a part thereof and should be attached thereto in accordance with the general practice ; and the action of the trial justice in settling the case on appeal from a judgment of death is reviewable by the Court of Appeals on an appeal by the defendant from an order of Special Term denying a motion for a resettlement. People v. Priori (1900), 163 K Y. 99. Kule 6] Appellant to Serve Copies of Case. lOY Insertion of motion papers.- — The affidavits and proceedings on a motion for a nevsr trial upon the ground of newly-discovered evidence, made after a judgment of death and an appeal by the defendant therefrom, which have been struck out of the proposed case on appeal, on the settlement thereof, by the allowance of an amendment prepared by the district attorney, should be restored on a motion for its resettlement by disallowing such amendment and inserting the affidavits and proceedings in the case. Id. RULE V. Cases and Points to be Printed — Mode of Printing. All cases and points, and all otlier papers furnished to the court in calendar causes, shall be printed on white paper as provided in section 796 of the Code of Civil Pro- cedure, [and if bound, the covers shall be of light-colored paper which can be legibly written upon]. Tlie folio numbering from the commencement to the end of the case, shall be printed on the outer margin of the page. Small pica, leaded, or ten point, leaded with 4-to-pica leads, is the smallest letter and most compact mode of composition which is allowed. No charge for printing the papers men- tioned in this rule shall be allowed as a disbursement in a cause, unless the requirements of the preceding sentence shall be shown, by affidavit, to have been complied with in all papers printed. The Code. Section 796 of the Code of Civil Procedure provides as follows: * * * All cases, briefs, points or other pai>ers required or used on an appeal from any judgment, determination or order of any court or board shall be printed (when required to be printed by the rules of any court) on paper of a uniform size, as follows : The paper must be ten and one-half inches by eight inches, and, bound on the edge of the greuteBt leiiirth. RULE VI. Appellant to Serve Copies of Case — Effect of His Default. Within forty days after the appeal is perfected, the ap- pellant shall serve three printed copies of the case on the 108 CcuET OF Appeals Practice. [Rule & attorney of the adverse party. If he fail to do so, the re- spondent may, by notice in writing, require the service of such copies within ten days after the service of the notice, and if the copies be not served in pursuance of such notice, the appellant shall be deemed to have waived the appeal; and on an affidavit proving the default and the service of such notice, the respondent may enter an order with the clerk dismissing the appeal for want of prosecution, with costs, and the court below may thereupon proceed as though there had been no appeal. When appeal perfected. The appeal is perfected and the forty days within which copies of the case must be served, begin to run when the requisite under- taking for costs is given and copy served. Code Ci^'. Proc.,. § 1326 ; see, also, under Rule I. Failure to serve cases; dismissal of appeal. Return not filed. — It is no excuse for nonservice of copies of the case as required by the rule, that the appellant has not caused the return to be made and filed. The respondent is not required to proceed under Rule I for a dismissal on failure to file return, but may wait until the time for serving cases has expired and then proceed for a dismissal of the appeal under Rule VI. Sage V. Volkening (1871), 46 IST. Y. 448. Default; opening. — Where the proceedings on the part of the respondent in dismissing an appeal under this rule are regular, the default ought not to be opened as matter of favor, imless there is some reason to think that the judgment so obtained is not in strict conformity with the real merits and equity of the case. Keuka Nav. Co. v. Holmes (1885), 98 X. Y. 655. Unless the respondent can show some delay or inconvenience from failure to serve copies of the case, a default taken therefor under the rule should be relieved against upon terms, where it appears the appeal is brought in good faith. Waterman v. Whit- ney (Ct. App. 1853), 7 How. Pr. 407. Laches. — ■ For circumstances which were held to show such de- lay and acquiescence as to call for a denial of a motion to set Eule 6i] Appellant to Sebve Copies of Case. 10i9 aside an order dismissing an appeal for failure to serve printed papers, see Matter of Boston (Ct. App. 1&84), 19 Wkly. Dig. 470. Remittitur, when to issue. — On the dismissal of an appeal Tinder this rule, .after the return has been filed, a remittitur should issue. Dresser v. Bi-ooks (1850), 2 IST. Y. 559. Belief, after remittitur sent down. — ^When an appeal is regu- larly dismissed under this rule and the remittitur sent down and judgment thereon perfected in the court helow, the Appellate Court loses all power over the case; but if the order of dismissal was irregularly obtained, it seems that the Court of Appeals may grant relief by vacating the order of dismissal. But so long as the order of the Court of Appeals stands, the court below is bound by it and has no power to make any order impairing its force. ISTewton v. Harris (1850), 8 Barb. 306. ■Where an appeal to the Court of Appeals has been dismissed for failure to serve copies of case, and the remittitur has been sent down, judgment entered thereon and execution issued, a mo- tion will not be entertained to reinstate the appeal. It seems that in such case the appellant should move in the court below to have the proceedings there vacated, and the remittitur returned to the Court of Appeals, to the end that he may then make his mo- tion for relief. Jones v. Anderson (1877), 71 N. Y. 599. (As to return of remittitur to enable the Court of Appeals to resume control of the cause so as to entertain motions therein, see, also, under Rules XI and XVI.) Imperfect case. A dismissal under this rule, by ex parte order, can only be had where there is a total failure to serve any case within the time prescribed. Where an imperfect case has been served, the respondent must make a motion, on notice, to have the case cor- rected .and proper copies served or the appeal dismissed. Bowers V. Tallmadge (1861), 23 K Y. 166; Bliss v. Hoggson (1881), 84 K Y. 667. (See under Eule XI, motions to dismiss appeal.) iPractice of clerk's office. On receipt of an affidavit from the respondent's attorney, prov- ing the default and service of notice, as prescribed by the rule, the clerk will enter the proper order (which need not be drafted 110 'CouET OF Appeals Pbactiob. [Rule T ty the attorney), dismissing the appeal, with costs, and will trans- mit a certified copy thereof to the respondent's attorney. The fee for such order and copy is one dollar. If the return has been filed, a remittitur will be issued and transmitted with the order. The fees for remittitur is two dollars. KTJIE VII. Copies of Cases and Points. At least twenty days before a cause is placed on the day calendar, the appellant shall file with the clerk eighteen* printed copies of the case ; and shall at the same time file with the clerk eighteen* printed copies, and serve on the attorney or counsel for the respondent three printed copies, of the points to be relied on by him, with a reference to the authorities to be cited. Within ten days after such service the respondent shall file with the clerk eighteen* printed copies, and serve on the attorney or counsel for the appellant three printed copies, of the points to be relied on by 'him, with a reference to the authorities to be cited. If the appellant desires to present points or authorities in reply, he shall file with the clerk eighteen* printed copies thereof and serve three printed copies on the attorney or counsel for respondent, within five days after receipt of the respondent 's points ; and no supplemental points will be al- lowed from either side unless specially requested by the court. No points will be received by the court on argument or submission unless they shall have been filed and served as above provided [except that in appeals under Rule XI noticed for the first Monday of a session, and in causes upon a new general calendar to be heard during the first two weeks of any session at whi parte, and is conclusive. * * • Second and subsequent appeals. § 195. Upon a second and each subsequent appeal, including a. case where a former appeal has been dismissed for a defect or irregularity, the time of filing the return, upon the first appeal, determines the place of the cause upon the calendar. Case involving title to office. § 229. An appeal from a, judgment or decree in any case in which the question of the title to a public ofiice is directly or collaterally at issue or in any manner involved, may be placed on the calendar and noticed for hearing on any day in the Appellate Division of the Supreme Court, in the first department, or in the Court of Appeals, and shall be heard on said day. Other statutory provisions concerning preferred causes are as follows : Review of assessments for taxation. Section 295 of the Consolidated Tax Law, in the article relating to the review of assessments by certiorari, provides as follows: "An appeal may be taken by either party from an order, judgment or determination under this article as from an order, and it shall be heard and determined in like manner as appeals in the Supreme Court from orders. All issues and appeals in any proceeding under this article shall have preference over all other civil actions and proceedings in all courts." Preference in action or proceedings by or against leceiver of insolvent cor- porations. Section 316 of the General Corporation Law is as follows: "All actions or other legal proceedings and appeals therefrom or therein brought by or against a receiver of any of the insolvent corporations referred to in this chapter, shall have a preference upon the calendars of all courts next in order to actions or proceedings brought by the people of the State of New York." Rule 14] Peefekred Causes. 167 Actions affecting New York City Rapid Transit Commission. Section 9 of chapter 4, Laws of 1891, as amended by section 5 of chapter 519, Laws of 1895, is as follows: Every action or proceeding brought by tli© said board and every action or proceeding in whicli an injunction is had or sought against the board or the said city, or against any corporation or person who or which shall have entered into a contract under the provision* of this act or any act supplementary thereto, or amendatory hereof, by reason of any act or thing done, proposed or threatened under or by virtue of any provision of this act, or any act supplementary hereto, or amendatory hereof, or is sought against any corporation or person claiming or claiming to act under any grant or franchise under this act, or any act supplementary hereto, or amendatory hereof, and every action or proceeding in which the constitutionality of any part of this act or of any act supplementary hereto, or amendatory hereof, shall or may be brought in question, shall have a preference above all causes not criminal on the calendar of every court, and may be brought on for trial or argument upon notice of eight days for any day of any term on which the court shall he in session. Actions under Public Service Commissions, or Railroad Law. Section 21 of the Public Service Commissions Law is as fol- lows : Court proceedings; preferences. ^ All actions and proceedings under this act, and all actions and proceedings BEommenced or prosecuted by order of either commission, and all actions and proceedings to which either commission or the people of the State of New York may b© parties, and in which any question arises under this act or under the Railroad Law, or under or concerning any order or action of the commission, shall be preferred over all other civil causes except election cases in all courts of the State of New York, and shall be heard and determined in preference to all other civil business pending therein, excepting election cases, irrespective of position on the calendar. The same prefer- ence shall be granted upon application of counsel to the commission, in any action or proceeding in which he may be allowed to interfere. Preference, in general. Inherent power to grant. — Courts have an inherent power to control their own calendars, and on that ground alone may grant orders giving causes a preference on the calendar. Smith v. Keepers (Supr. Ct. 1884), 5 Civ. Proc. R. 66. Statutory right to, cannot he abridged. — Where a right to preference is given by the Code absolutely, without any qualifica- tion or condition, being given by statute it cannot be limited or 168 CouET OF Appeals Peactice. [Rule 14 abridged by the court, by rules or otherwise. McArthur v. Coin- mercial Fire Ins. Co. (N. Y. City Ct. 1884), 67 How. Prao. 510. Must he claimed in notice of argument. — ISTotwithstanding the provisions of the Code giving preferences among civil causes, a party claiming a preference in the Court of Appeals must comply vsdth the direction of its rule, that such claim, and the grounds thereof, must be stated in his notice of argument. Taylor v. Wing (1881), 83 K Y. 527. Appeal from order in preferred cause. — Where an appeal in an action entitled to a preference under one of the general statu- tory provisions is also entitled to be heard on a motion day under Rule XI, it should go upon the order calendar and not upon the general calendar. Slater v. Slater (1903), 174 IST. Y. 264.' Preference, in particular cases. Section 791, subdivision 1. — Where, in an action in which the people were parties, and appeared by the Attorney-General, the latter did not, at the time of serving notice of argument, give notice of a partierilar day in the term on which he would move it, but served with the notice of argument, notice of motion that the cause be set down for a day named, which motion failed be- cause the court adjourned before the day specified for making it, — it was held that the action was not entitled to a preference. People ex rel. Augerstein v. Kinney (1883), 92 N. Y. 647. Section 791, subdivision 4. — To entitle an action to the prefer- ence given by subdivision 4 of section 791 of the Code of Civil Procedure where a party to an action in the Court of Appeals has died pending the action and its pendency prevents a final settle- ment of his estate, the deceased party must have been, and his substituted personal representative must be, the sole plaintiff or sole defendant in the action. Colton v. IST. Y. Elevated E. R. Co. (1896), 151 K Y. 266. Section 791, subdivisio7i 5. — To entitle a cause to a preference as " an action for the construction of, or an adjudication upon, a will " it must be expressly brought for that purpose ; it is not enough that the construction of a will is incidentally involved. Peyser v. Wendt (1881), 84 N. Y. 642. A sole plaintiff who does not sue as executor is not entitled to have his cause put upon the calendar of preferred causes in the Rule 14] Peefeeeed Causes. 169 Court of Appeals, on the ground that he brought the action in that capacity; the court cannot make the inference from what is contained in the record. Seymour v. Spring Forest Cemetery Association (1893), 139 JST. Y. 645. An action by a creditor of a deceased insolvent debtor on behalf of himself and others to set aside a transfer, is entitled to a preference. Eottle v. Mut. Life Ins. Co., 67 App. Div. 12. The right to a preference, given by subdivision 5 of section 791 of the Code of Civil Procedure, vphen a person in one of the capacities speciiied is the sole plaintiff or sole defendant, does not extend to a case where the same person is joined as a party in his individual capacity as well as in the prescribed capacity. Haux V. Dry Dock Savings Inst. (1896), 150 IST. Y. 581. The right to the preference applies to cases in which there are several plaintiffs or defendants, where all the parties on the same side are such in representative capacities within this subdivision, and in no other capacity. See ililligan v. Cottle (1897), 152 W. Y. 644. Section 791, subdivision 6. — A preference under this subdi- vision can be claimed only when the proof required, i. e., that the plaintiff " has no sufficient means of support, aside from the estate in controversy," has been made and an order allowing the preference obtained as required by section 793, before the notice of argument was served. Bartlett v. Musliner (1883), 92 K^. Y. 646. Section 791, subdivision 7. — When a preference is claimed on the ground that the action is one against a corporation " issuing bank notes, or any kind of paper credits, to circulate as money," and this fact does not appear in the pleadings or other papers on which the appeal is to be heard, the party desiring the preference must procure an order therefor under section 793. Bank of Attica V. Metropolitan ISTat. Bank (1883), 91 N". Y. 239. A ease in which a village is sole plaintiff or defendant is not entitled to a preference under the last sentence of this subdivision. Keane v. Village of Waterford (Ct. App. 1891), 26 N". E. 759. Section 791, subdivision 8. — An action on an insurance policy is not an action founded upon an " evidence of debt for the abso- lute payment of money," within the meaning of the Code. This expression is to be confined strictly to instruments which admit on their face an existing debt, payable absolutely, and is not 170 Court of Appeals Pbacticb. [Rule 14 applicable to a contract payable only upon certain specified con- ditions. N. Y. Life Ins. Co. v. Universal Life Ins. Co. (1882), 88 ISr. Y. 424, overruling Studwell v. Charter Oak Ins. Co. (1879), 19 Hun, 127, wbich had been dissented from in Wells v. Watertown Fire Ins. Co. (1880), 21 Hun, 409. A lease of wharf property for a term of years at a yearly rent is not to be regarded as an obligation for the absolute payment of money, so as to entitle to a preference an action against a corporation thereon. Philadelphia S. S. Dock Co. v. Lorillard S. S. Co. (Supr. Ct. 1878), 54 How. Pr. 508. An action against a corporation to recover the amount of in- terest coupons upon bonds issued by another corporation, based upon an agreement between the two corporations, by which de- fendant had become liable for their payment, being in reality an action on the agreement and not an action on the bonds, is not an action " founded upon a note or other evidence of debt, for the absolute payment of money," within the meaning of the provision of the Code giving to such an action against a corporation a preference upon the calendar. Polhemus v. Fitchburg E. R. Co. (1889), 113 K Y. 617. Section 791, subdivision 10. — By force of section 3347 of the Code of Civil Procedure, regulating the application of certain portions of that Code, section 791 is not made applicable to the Court of Appeals except where that court is designated in a particular provision; the provision in subdivision 10, for a pref- erence in the case of " a cause entitled to preference by the gen- eral rules of practice," that is, by the rules of courts other than the Court of Appeals, does not designate, and therefore does not apply to, the Court of Appeals. Therefore, to obtain a preference upon the calendar of that court, in a case where it is not desig- nated by the Code, or in its rules, the application must be ad- dressed to the discretion of the court. Nichols v. Scranton Steel Co. (1892), 135 N. Y. 634. The mere showing in a case that certain certificates of stock belonging to defendant, and in possession of another, were levied on and were still held under an attachment, does not justify the giving of preference to the hearing of the appeal therein. Id. The fact that two corporations differ in the construction of a mutual agreement, and in the meantime neither fulfils its obliga- Rule 14] Peefeeked Causes. 171 tion to the holders of its securities, furnishes no reason for giving a cause a preference by the court, in the exercise of its discretion. Polhemus v. Fitchburg R. R. Co. (1889), 113 N. Y. 617. Section 791, subdivision 12. — This provision applies only to appeals taken after its enactment took effect (September 1, 1899), and not to appeals then pending. Coxhead v. Johnson (1899), 160 ]Sr. Y. 369. Section 793. — It is no excuse for a failure to procure an order for preference under this section, that there was no term of the Court of Appeals at which a motion for the order could be made. Such a motion may be made before any judge of the court, at his residence or ofBce, or at any place which the judge on application of the moving party may name. Bank of Attica v. Metropolitan Nat. Bank (1883), 91 IST. Y. 239. A party entitled to a preference may withdraw former notice and serve new one. Gilbert v. Finch, 46 App. Div. 75. Where a party has neglected to procure the proper order for preference, under this section, the court will not, after the calen- dar is made up, make an order nunc pro tunc giving the prefer- ence, where no good reason appears for giving that particular case a preference over other causes on the calendar, but will, if it has been placed on the preferred calendar, strike it therefrom and place it in its proper order on the general calendar. Id. Review of assessments. — Appeals in certiorari proceedings to correct tax assessments, under chapter 269, Laws of 1880, were, by force of section 7 of that act, now embodied in section 255 of the Tax Law (L. 1896, chap. 908), deemed " appeals from orders entitled to be heard as motions," when the provision of the Code of Civil Procedure authorizing such classification of appeals (section 192, repealed by chap. 946 of 1895) was in force. Peo- ple ex rel. WalkiU Valley R. R. Co. v. Keator (1885), 101 N. Y. 610; People ex rel. West. U. Tel. Co. v. Dolan (1891), 126 K Y. 166. Preferred calendar; practice of clerk's oflSce. Causes belonging to the same preferred class are placed on the preferred calendar of such class in the order of date of filing returns, and are called for argument in that order, no other pref- erence being recognized among them than that arising from priority in date of filing return. 172 Court of Appeals Peactice. [E-ule 15 RULE XV. Defaults. Judgments of reversal by default will not be allowed. When a case is called in its order on the calendar, if tbe appellant fails to appear and furnish the court with the papers required, and argue or submit his cause, judgment of affirmance by default will be ordered on motion of the respondent. If the appellant only appears, he may either argue or submit the cause. When any cause shall be regularly called for argument, and no other disposition shall be made thereof, the appeal shall be dismissed without costs, and an order shall be entered accordingly, which shall be absolute unless upon application made and good cause shown, upon notice to the opposite party within ten days, if the court is in session, and if not, on the first motion day of the nest session, the court shall revoke said order and restore said appeal. Judgments by default. This rule is based, as to subject-matter, upon a Eule XXV, which was in force from 1862 to 1870. That rule provided that no judgments by default should be allowed, but that, when a caused was reached on the calendar, it must be argued, submitted or passed, and that if either party appeared, he should deliver a copy of his brief to the clerk, to be delivered when called for, to the opposite party, who might at any time, within twenty days after the hearing, furnish to each member of the court, and serve upon the opposite party a printed answer to such brief, which might be replied to in like manner at any time within fifteen days after such service. That rule, it was said by the court, was not intended to impose upon the judges the duty of acting as counsel for the party who did not appear to prosecute or defend, but was intended to save to parties acting in good faith a further opportunity to present a printed brief, and save the court the loss of time formerly con- sumed in hearing motions to open defaults. Maher v. Carman (1868), 38 N". Y. 25. Rule 15] Defaults. 173 It was held, while the rule was in that form, that if the appel- lant failed to appear when the cause was reached, or to submit a brief afterwards, as then permitted, the judgment appealed from should be affirmed of course. Kelly v. McCormiek (1863), 28 E". Y. 318; Smith v. Martin (1867), 3 Keyes, 373; Lyman v. Wilber (1867), 3 Keyes, 427. Conditions imposed on opening a default. — ■ Prior to 1862, the rules permitted judgments, both of affirmance and reversal, by default. In that state of the rules, a motion to open a default taken on the failure of the appellant to appear when the case was reached for argument, when the respondent's counsel attended prepared to argue the cause, was granted, on excuse, on payment of the taxable costs of the term and of opposing the motion and a counsel fee of fifty dollars, in Slade v. Warren (1848), 1 N. Y. 431. The same counsel fee and costs of the term were imposed as a condition of opening, on what may be considered ordinary excuses, a default on the part of the respondent, in Conant v. Vedder (Ct. App. 1849), 4 How. Prac. 141. In Jorgensen v. Squires (1894), 142 IST. Y. 643, a motion to vacate an affirmance by default, entered on the appellant's failure to appear when the case was called on the day calendar, was granted on payment of fifty dollars, within fifteen days after service of notice of the entry of the order. Practice of the clerk's office. Affirmance hy default. — On an affirmance by default under the rule, the clerk drafts and enters the proper order and furnishes a certified copy thereof to the respondent's attorney, who should thereupon serve notice thereof upon the appellant's attorney, as required by Rule XVII before remittitur can issue, unless the court shall otherwise direct. The fee for certified copy of the order is one dollar. Dismissal on call of calendar. — When an appeal is dismissed under this rule, on the call of the calendar, the clerk drafts and enters the proper order and makes up a remittitur, which, to- gether with a certified copy of the order, is transmitted to the respondent's attorney, if he so requests; if not, the papers are transmitted to the appellant's attorney. The fee for remittitur and certified copy of order is three dollars. 174' CouBT OF Appeals Peactice. [Kule 16 Dismissal by consent. — ^An appeal may be dismissed by consent at any time, by filing with the clerk a stipulation to that effect, signed by the respective attorneys for the several parties, and ■ stating whether the dismissal is to be with or without costs. On the receipt of such stipulation, the clerk drafts and enters the proper order, and, if a return has been filed, makes up a remitti- tur, which, with a certified copy of the order, is transmitted as may be directed by the stipulation. If the stipulation contains no direction on the subject, the papers are sent to the respondent's attorney, if he so requests ; if not, they are sent to the appellant's attorney. The fee for remittitur and certified copy of order is three dollars. If no return has been filed, only a certified copy of the order is sent down, the fee for which is one dollar. Criminal causes. The Code of Criminal Procedure provides as follows: Papers, by whom furnished, etc. § 538. When the appeal is called for argument, the appellant must furnish the court with copies of the notice of appeal and judgment-roll, except where the judgment is of death. [See Rule IV.] If he fail so to do, the appeal must be dismissed, unless the court otherwise direct.' Judgment of afSrmance may be without argument, if appellant fails to appear; reversal only upon argument, though respondent fail to appear. § 539. Judgment of affirmance may be given, without argument, if the appellant fail to appear, or where the judgment appealed from is of death and it shall not have been brought on for argument within six months from the taking of such appeal, unless the court, for good cause shown, shall have enlarged said time. But judgment of reversal can only be given upon argument, though the respondent fail to appear. (Amended by Laws 1902, chap. 369.) Negligence of counsel.— An affirmance of judgment in a capital case without argument, on account of the negligence and default of the defendant's counsel, is a most severe penalty which the court will hesitate to impose. People v. Nelson (1907), 188 N. Y. 234. RULE XVI. Remittitur. The remittitur shall contain a copy of the judgment of this court and the return made by the clerk below, and shall be sealed with the seal and signed by the clerk of this court. R^^le 16] Remittittje. 175 Decision; remittitur; enforcement; restitution. The State Constitution (Art. VI, § 3), provides as follows: Judge or justice not to sit in review; testimony in equity cases. No judge or justice shall sit in tlie Appellate Division or in the Court of Appeals in review of a decision made by him or by any court of which he was at the time a sitting member. The testimony in equity cases shall be taken in like manner as in cases at law; and, except as herein otherwise provided, the Legislature shall have the same power to alter and regulate the jurisdiction and pro- ceedings in law and equity that it has heretofore exercised. Tlie State Constitution (Art. VI, § 7), contains the following provision in regard to the Court of Appeals: Five members of the court shall form a quorum, and the concurrence of four shall be necessary to a, decision. The Judiciary Law, section 15, contains the following pro- visions (formerly a part of § 46 of the Code) : Disqualification of judge by reason of interest or consanguinity. § 15. A judge shall not sit as such in, or take any part in the decision of, a cause or matter to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity, or affinity to any party to the controversy within the sixth degree. The degree shall be ascertained by ascending from the judge to the common ancestor, and descending to the party, counting a- degree for each person in both lines, including the judge and party, and excluding the common ancestor. But a judge of the Court of Appeals, or a justice of the Appellate Division of the Supreme Court, shall not be disqualified from taking part in the decision of an aetion or special proceeding in which an insurance company is a party or is interested, by reason of his being a policy-holder therein. The Judiciary Law, section 22 (formerly part of § 46 of the Code), contains the following provision: Judge other than of Court of Appeals or Appellate Division not to decide question argued during his absence. § 22. A judge other than a judge of the Court of Appeals, or of the Appellate Division of the Supreme Court, shall not decide or take part in the decision of a question, which was argued orally in court, when he was not present and sitting therein as a judge. The Code of Civil Procedure provides as follows: Form of judgment of affirmance. § 1317. * ♦ » A judgment afiirming wholly or partly a judgment, from which an appeal has been taken, shall not, expressly and in terms. 1^6 CouET OF Appeals Practice. [Rule 16 award to the respondent, a sum of money, or other relief, which was awarded to him by the judgment so affirmed. Judgment on appeal. § 1337. * * * In any action on an appeal to the Court of Appeals, the court may either modify or affirm the juugment or order appealed from, award a new trial, or grant to either party such judgment as such party may be entitled to. Decision on demurrer with leave to amend. § 497. Upon the decision of a demurrer, either at a general or special term, or in the court of appeals, the court may, in its discretion, allow the party in fault to plead anew, or amend upon such terms as are just. If a demurrer to a complaint is allowed because two or more causes of action have been improperly united, the court may, in its discretion, and upon such terms as are just, direct that the action be divided into as many actions as are necessary for the proper determination of the causes of action therein stated. Remittitur; judgment absolute, and proceedings thereupon. § 194. The judgment or order of the Court of Appeals must be re- mitted to the court below, to be enforced according to law. Upon an appeal from an order granting a new trial, on a case or exceptions, if the Court of Appeals determines that no error was committed in grant- ing the new trial, it must render judgment absolute upon the right of the appellant; and after its judgment has been remitted to the court below, an assessment of damages, or any other proceeding, requisite to render the judgment effectual, may be had in the latter court. Remittitur upon certified questions. § 190 (subd. 2). * * * And the Court of Appeals shall certify to the Appellate Division its determination upon such questions. Mode of enforcing afSrmed or modified judgment. § 1319. Where a judgment, from which an appeal has been taken, from one court to another, is wholly or partly affirmed, or is modified, upon the appeal, it must be enforced, by the court in which it was rendered, to the extent permitted by the determination of the appellate court, as if the appeal therefrom had not been taken. Correction of docket of judgment, on reversal, etc., by Court of Appeals. § l.'J'i^. Where a final judgment for a siiin of mnnev. or directing the payment of a sum of money, has been reversed, or affirmed as to part only of the sum, upon an appeal to the Court of Appeals, the docket may be corrected, as prescribed in (section 1321) at any time after the remittitur has been filed in the court below. Rule 16] Remittitur. 177 Restitution; when awarded. § 1323. When a final judgment or order is reversed or modified, upon appeal, the appellate court, or the general term of the same court, as the case may be, may make or compel restitution of property, or of a right, lost by means of the erroneous judgment or order; but not so as to affect the title of a purchaser in good faith and for value. When property has been sold, the court may compel the value, or the pur- chase price, to be restored, or deposited to abide the event of the action, as justice requires. When the appeal is from a judgment in favor of the owner of real estate in an action to set aside a conveyance thereof or in an action to compel the specific performance of a, contract for the sale thereof, such owner shall have the same right to sell or dispose of the same as though no appeal had been talien; unless the appellant shall file with the clerk of the court a written undertaking, in a sum fixed by the court, or a judge thereof, upon a notice to the respondent of at least ten days, and to be approved by such court or judge, to the effect that the appellant will, in case the judgment appealed from shall be afiirmed, pay to such owner such damages as he may suffer by reason of such appeal, not exceeding the amount of the penalty in such undertaking. Such under- taking may be filed at any time during the appeal, but any sale of such real estate or contract to sell the same in good faith and for a valuable consideration, after said judgment and before the filing of such undertaking, shall be as valid as if such undertaking had not been filed. In case such undertaking shall not be filed, the respondent shall be entitled, at any time during such appeal, to an order discharging of record any notice of pendency of action filed in the action, and in an action to compel the specific performance of a contract for the sale of real estate, also canceling and discharging of record said contract, in case the same has been re- corded. (Amended by Laws 1899, chap. 650.) Restitution in summary proceedings to recover possession of real property. § 2263. If the final order is reversed upon the appeal, the appellate court may award restitution to the party injured, with costs; and it may make any order, or issue any other mandate, necessary to carry its determination into effect. The person dispossessed may also maintain an action, to recover the damages which he has sustained by the dispossession. Decision. Date of affirmance or reversal. — The announcement of its deci- sion of an appeal constitutes the affirmance or reversal by the Court of Appeals and fixes the date thereof, irrespective of when the remittitur is issued or filed, or when an order thereon is entered below. Treadwell v. Clark (1908), 127 App. Div. 256. Action embracing a numher of items. — In an action at law 12 178 CouET OF Appeals Peactice. [Rule 16 embracing a number of items or claims, an appellate court has no power to affirm a judgment allowing one item or claim and send the cause back for a new trial as to another (Wolsterholme V. Wolsterholme Mfg. Co. [Ct. App. 1876], 2 Wkly. Dig. 128); but if the erroneous item is distinguishable from the other parts of the judgment, the court may allow a modification by deduct- ing it, and affirm the judgment, if the respondent consents to such deduction. Hayden v. Florence Sew. Mach. Co. (1873), 54 N". Y. 221; and see Freel v. County of Queens (1898), 154 K Y. 661. See 163 K Y. 345. Severance of causes of action. — Where a case on appeal contains two entirely separate and distinct causes of action, it is within the power of the Court of Appeals to sever them and affirm the judgment as to one, though it reverses it as to the other. Bremer V. Manhattan Ey. Co. (1908), 191 N. Y. 333. Reversal hy divided court. — In considering a former decision of the Court of Appeals, where the court divided and the major- ity concurred simply for reversal, it is not safe to treat anything as having been adjudicated except the precise point in respect to which error in the judgment of the court below was made to ap- pear. Clews V. JST.'y. Nat. Banking Assn. (1887), 105 ^\ Y. 398, 403. Affirmance without opinion. — ^Where a judgment is affirmed in the Court of Appeals without an opinion, and withoiit formally adopting the opinion below, it is not to be understood that the affirmance is upon grounds substantially different from those taken below ; on the contrary, the inference is the other way, as in ease of such a difference the court would deem it proper to state the reason for affirmance. Higgins v. Crichton (1885), 98 IST. Y. 626. An affirmance by the Court of Appeals, without opinion, makes it responsible only for the point decided below, not for all the reasons given or opinions expressed ; and the affirmance or reversal of the judgment of the Appellate Division does not necessarily show that the Court of Appeals concurred in or dissented from the statements contained in the opinion of the Supreme Court. Eogers v. Decker (1892), 131 N. Y. 490. Poiuer to correct judgment. — Where the Appellate Division has struck out the judgment of the Trial Court, in an action to fore- Rule 16] ' Remittitur. 179 close a mechanic's lien, a provision to whicli the plaintiff was entitled adjudging a lien in his favor and substituted a provision for a personal judgment to vehich he was not entitled, the Court of Appeals has power, under section 1337 of the Code, to correct the judgment by striking out the improper provision and restor- ing the original one. Gilmour v. Colcord (1906), 183 N. Y. 342. Decision without opinion not overruling. — ^When a decision is made by the Court of Appeals upon full consideration, it cannot be regarded as overruled by a subsequent case in which no opinion was written and no ground of action stated. The court does not overrule important authorities suh silentio. Pratt Institute v. City of New York (161), 183 E". Y. 151. Judgment of all judges present. — A judgment of aflSrmance pro- nounced in open court is deemed the judgment of all the judges present not dissenting. Mason v. Jones (1850), 3 IT. Y. 375. Final judgment. — To justify an Appellate Court in awarding final judgment in favor of aU appellant it must appear that the facts upon which the right of recovery rests are undisputed and cannot be varied upon another trial, or that they are established by official records, or that they have been specifically found by the jury or Trial Court. Benedict v. Arnoux (1898), 154 N. Y. 715 ; Matter of Chapman (1900), 162 N. Y. 456; Dixon v. James (1905), 181 N. Y. 129; Duclos v. Kelly (1909), 197 >T. Y. 76. Decision on demurrer. — ^Where an order of the Appellate Di- vision determining a demurrer grants leave to plead over condi- tionally, the affirmance of the order by the Court of Appeals car- ries with it an affirmance of such leave, without restating it; and the time originally granted for the performance of the condi- tion runs from the filing of the remittitur. Cassidy v. Sauer (1907), 188 JSr. Y. 547. Decision after death of party. — Where a party has died since the argument of an appeal, but before the decision was handed down, the court may amend the date of its decision nunc pro tunc so as to make it bear date as of a day prior to the death (Carter V. Beckwith [1880], 82 N. Y. 83; Matter of Beckwith [1882], 87 IST. Y. 503) ; and the substituted date of decision is properly that of the argument or submission of the appeal. See Layton v. Kraft (1909), 195 K Y. 525. 180 Court of Appeals Practice. [Eule 16 Scope of opinion. Concurrence presumed. — Where two or more points are dis- cussed in the opinions delivered on the decision of a cause, and the determination of either point in the manner indicated in such opinions would authorize the judgment pronounced by the court, the judges concurring in the judgment must be regarded as concurring in such opinions upon all the points so discussed, unless some dissent is expressed or the circumstances necessarily lead to a different conclusion. James v. Patten (1851), 6 IST. Y. 9. Reasons no part of judgment. — The reasons assigned by an appellate court for reversing a judgment form no part of the judgment of such court and cannot be used to modify its effect. Wilson V. Palmer (1877), 11 Hun, 325, 327. Dicta. — If broader statements are made in an opinion, by way of argument or otherwise, than are essential to the decision of the questions presented, they are the dicta of the writer of the opinion and not the decision of the court. Colonial City Trac- tion Co. V. Kingston City P. E, Co. (1897), 154 W. Y. 493. Eemittitur; when should issue. Where a return has been filed and any order is made by the Court of Appeals which disposes of the entire appeal, it is proper to send down a remittitur. This is so although the order may not be on the merits — as, an order of dismissal for not serving copies of the printed case. Dresser v. Brooks (1850), 2 E". Y. 559. An order of dismissal is the judgment of the court, and a remittitur is the regular process to restore the cause to the court below to be enforced, whether the dismissal is in open court or under the rules. Langley v. Warner (Ct. App. 1849), 2 Code Rep. 97. Where there is an appeal from a judgment and from an order at the same time, in one return, and the appeal is dismissed so far as it relates to the order only, a remittitur sending back the judgment as well as the order is irregular. McFarlan v. Watson (Ct. App. 1849), 4 How. Prac. 128. On reversing a discretionary order because erroneously founded on a supposed want of power, the cause is to be re- Kule 16] Remittitue. 181 mitted to the court below for the exercise of its discretion. Hew- lett V. Wood (1876), 67 K T. 394. Action on remittitur in court below. Order must he entered. — The judgment of the Court of Ap- peals is to be remitted to the court below to be enforced accord- ing to law, and it must, therefore, be brought formally to the notice of that court and be made one of its judgments. It has no other means of enforcing the judgment of the Court of Ap- peals, and until it makes an order to that effect, and the judg- ment of the Court of Appeals becomes incorporated in its own records, no proceeding can be taken to enforce the judgment of the Appellate Court. Merely filing the remittitur with the clerk and his adjustment of costs thereon is not sufficient (Seacord v. Morgan [Supr. Ct. 1859], 17 How. Prac. 394) ; and this practice has been uniformly followed. Murray v. Jones (IST. Y. City Ct. 1888), 2 K Y. Supp. 486. The proper practice on entering judgment in the court below upon a remittitur from the Court of Appeals is to direct, by order, that the judgment of the Court of Appeals stand as the judgment of the court below, and to insert the costs of appeal when adjusted, in the latter judgment. Union India Eubber Co. V. Babcock (K Y. Supr. Ct. 1854), 1 Abb. Pr. 262. Neglect to file remittitur. — Where a remittitur had issued from the Court of Appeals under its seal and had been delivered to the prevailing party, as is the practice, with a view to having it transmitted to the court below, it was held that the party who had the remittitur could not be permitted to profit by his own neglect to file it with the court below, and that, therefore, he could not, after a new trial had been had under the judgment of the Court of Appeals, without objection, insist that the court below had no jurisdiction because the remittitur had not been filed with it. Judson V. Gray (Ct. App. 1859), 17 How. Prac. 289. What is not a filing of remittitur.— The mere coming of the remittitur to the hands of the clerk of the court below is not an actual filing, where the clerk immediately, on being served with a stay, handed the remittitur back to the attorney, without having marked it filed, and expressly refused to file it. Cus:h- 182 Court of Appeals Peacticb. [Rule 16 man v. Hatfield (1873), 52 K Y. 653; 15 Abb. Prac. (IST, S.) 109, and note. The filing of a remittitur without the authority of the CJourt of Appeals or in violation of its order is, in legal contemplation, no filing. Marshall v. Macy (Supr. Ct. 1877), 5 Wkly. Dig. 90. Omission to enter order may he amended. — The order making the judgment of the Court of Appeals the judgment of the court to which the remittitur is sent, is an order of course, and the omission to enter it is a formal irregularity which the court below may amend nunc pro tunc and which, on appeal from subsequent orders, will be disregarded in the Court of Appeals; but the better practice is to make a formal motion in the court below, on filing the remittitur. Chautauqua County Bank v. White (1861), 23 N. Y. 347. That the order of the court below may be entered nunc pro tunc was reasserted in Seacord v. Morgan (Ct. App. 1867), 4 Abb. Prac. (K S.) 249, 257; 3 Keyes, 636. Interlocutory order. — ISTo judgment can be entered upon a re- mittitur of an order of the Court of Appeals reversing an inter- locutory order. Brown v. Leigh (1872), 50 K". Y. 427. Court below cannot question regularity. — The court below can- not go behind a judgment entered in conformity with a remittitur from the Court of Appeals and inquire into its regularity. Gris- wold v. Havens fSupr. Ct. 1863), 16 Abb. Prac. 413. The court below cannot, upon motion, vacate a judgment en- tered upon a remittitur from the Court of Appeals, on accotmt of irregularity in obtaining the order of the Appellate Court on which it issued; and although the Appellate Court loses jurisdic- tion after an appeal has been regularly dismissed, the remittitur sent down and judgment thereon perfected in the court below, still, when its order had been irregularly obtained it seems that it might vacate it and then the court below would set aside the judgment entered thereon. ISTewton v. Harris (Supr. Ct. 1850), 8 Barb. 306. Order must conform- to remittitur. — If the order of the court below on a remittitur affirming a judgment is broader than the judgment affirmed, or differs from it, it is so far of no effect. Freeman v. Barber (1874), 1 Hun, 433. -Eule 16] Remittitur. 183 The court below cannot supply any defect in the judgment contained in a remittitur from the Court of Appeals nor add any direction to it, beyond what is required to carry it into effect. McGregor v. Buell (1864), 1 Keyes, 153; Matter of Prot. Epis. Public School (1881), 86 N. Y. 396. A judgment entered in pursuance of a decision of the Court of Appeals cannot be altered by the court below, but it may au- thorize the filing of a supplemental complaint after such judg- ment has been entered in the action. Clark v. Mackin (1884) 34 Hun, 345. Order must conform strictly to remittitur, and error in order can only be corrected by Court of Appeals. Zapf v. Carter (1904), 90 App. Div. 407. Judgment on remittitur, not an actual determination. — The duty of the court below in reference to a remittitur is simply to enforce the judgment of the Court of Appeals, and the judg- ment entered for that purpose is not an actual determination from which an appeal lies to the Court of Appeals, although after having been entered at Special Term it has been affirmed at Gen- eral Term. Wilkins v. Earle (1&71), 46 K Y. 358. Judgment absolute. Covers all the issues. — Where, on appeals from an order grant- ing a new trial, the Court of Appeals renders judgment absolute against the appellant, it is obligatory upon the court below to enter judgment in favor of the respondent upon all the issues in the action. Wilson v. Palmer (1877), 11 Hun, 325, 327. Specific relief in court below. — Where "judgment absolute" has been awarded by the Court of Appeals, without determining the character of the judgment, in an action where the relief may, in the discretion of the court below, consist of an injunction or of an award of damages in lieu thereof, the application for specific relief should be made to the court below, and an amend- ment of the remittitur in that respect is unnecessary. Bates v. Holbrook"(19i02), 171 K Y. 688. Whole claim covered by stipulation. — An objection that a judg- ment should not have been reversed altogether, but should have been sustained as to part of a claim and judgment for a smaller amount given, cannot be made in the Court of Appeals after 184 CotTET OF Appeals Peactice. [Eule 16 stipulation for judgment absolute in case no error was committed in granting a new trial where the whole claim was treated by the appellant and passed upon below as a single claim, part of which was invalid, since on such an appeal the order of reversal must be aflSrmed if the record shows any error by the trial court calling therefor. Bank of China v. Morse (1901), 168 IST. Y. 458. Effect of judgment. — The effect of a judgment absolute by the Court of Appeals, under section 194 of the Code, against the defendant, in the action, is to award the plaintiff the judgment which he is entitled to upon his complaint without regard to any defense interposed by the answer; and in assessing the damages thereunder the allegations of the complaint are to be treated as true and the same as if no answer had been interposed. City Trust, etc., Co. v. Am. Brewing Co. (1905), 182 IST. T. 285. Counterclaim. — The judgment to be rendered on the affirm- ance of an order granting a new trial, must be absolute against the appellant upon the whole matter and right in controversy in the action. Where, therefore, an order reversing a judgment in favor of the plaintiff and granting a new trial is affirmed on appeal to the Court of Appeals and judgment absolute ordered,, in an action where the answer sets up a counterclaim, the defend- ant is entitled to such judgment upon the remittitur as the facts alleged by him in his answer entitle him to. Hiscock v. Harris (1880), 80 N. Y. 402. But there cannot be judgment absolute for a counterclaim against the State, under a stipulation, on such an appeal. People V. Dennison (1881), 84 K Y. 272. Costs. To he adjusted and inserted. — The costs of the appeal to the Court of Appeals should be adjusted by the clerk of the court below and inserted in the entry of judgment on the remittitur. Union India Rubber Co. v. Babcock (Supr. Ct. 1854), 1 Abb. Prac. 262. Where an order of the General Term is affirmed by the Court of Appeals, with costs, and the cause is remitted to the Supreme Court, that court has power to adjust the costs in cases where the clerk cannot do it. Cochran v. Ingersoll.(1877), 11 Hun, 342. Interlocutory order. — The proceedings on a remittitur of the Court of Appeals, reversing an interlocutory order are interlocu- Rule 16] Kemittitue. 185 tory, and the costs are to be adjusted and collected as other inter- locutory costs. Brown v. Leigh (1872), 50 N. Y. 427. Irregular insertion of costs. — Although an entry of judgment upon a remittitur from the Court of Appeals, with the costs in- serted therein as adjusted in the absence of the attorney for the unsuccessfid party, is irregular, the whole judgment is not void on that account; and the irregularity, being confined to the entry of the award of costs, can be corrected by amending the judgment- roll, docket and execution, by striking it out. Lawrence v. Bank of Eepublic (Siipr. Ct. 1866), 6 Hob. 497. Costs not allowed when damages excessive. — Where, on affirm- ing a judgment, it has seemed to the Court of Appeals that the damages recovered are excessive, it has refused to allow costs. See Cheesebro v. Corning, and Spink v. Corning (1902), 172 ]Sr. Y. 626. Double appeal. — Costs will be allowed against appellant on the dismissal of one of two appeals from the same judgment on two separate records which present the same question, although it was taken from abundant caution to make certain of the hearing of the question upon one record or the other and to settle a doubtful question of practice and the appellant is successful on the other appeah Abbey v. Wheeler (1902), 170 JST. Y. 122.. New trial ordered without costs.— Where the Court of Appeals has reviewed a judgment as to one cause of action and granted a new trial and has otherwise affirmed the judgment without costs in the Court of Appeals to either party, the costs of the first trial need not be retaxed after the new trial is had ; only the costs sub- sequent to the reversal are taxable. Talcott v. Wabash E. E. Co. (1904), 99 App. Div. 239. Court below cannot change provision of remittitur. — The court below cannot add any provision for costs to the remittitur (Mc- Gregor V. Buell [1864], 1 Keyes, 153; Matter of Prot. Epis. Public School [1881], 86 N. Y. 396; Stevens v. Central Nat. Bank [1901], 168 K Y. 560) ; nor can it disallow costs granted by the remittitur, but if a change should be made in that respect, the remittitur should be returned to the Court of Appeals for remedial action there. Sheridan v. Andrews (1880), 80 IST. Y. 648. 186 CouET OF Appeals Peactice. [Eule 16 Provisions of remittitur^ as to costs. — In the Court of Appeals, all appeals are on the same footing and, on the dismissal of an appeal with costs, fuR general costs follow, whether the appeal be from an order or a judgment. White v. Anthony (1861), 23 JST. Y. 164; Brown v. Leigh (1872), 50 N. Y. 427. Under section 3238 of the Code, regulating costs upon appeal from a final judgment, the Court of Appeals has power, in an equitable or legal action, upon the reversal of the judgment and the granting of a new trial, in its discretion, to provide that the costs shall abide the event, or to award them absolutely. Where it is provided that costs shall abide the event, this means all the costs of the action up to and including the decision of the Court of Appeals. Franey v. Smith (1891), 126 N. Y. 658. When costs are given by the judgment of the Court of Appeals it means costs in that court to the successful party as against the unsuccessful party. Sisters of Charity v. Kelly (1877), 68 K Y. 628. Costs on appeal from a decree of Surrogate's Court, being in the nature of a decree in equity, are discretionary. Lawrence v. Lindsey (1877), 70 K Y. 566. Where the Court of Appeals has once passed upon the question of costs in that court, the State courts and the parties to the action are thereafter bound by that decision, although the case has subsequently gone to the United States Supreme Court and its mandate has passed through the Court of Appeals down to the court of original jurisdiction, but does not disturb the original decision as to costs. Stevens v. Central Nat. Bank (1901), 168 N. Y. 560. In a judgment of reversal by the Court of Appeals, " with costs to abide event," in an action against an executor or administrator the word " event " means not only final success in the action, but also a valid award of costs, generally, under section 1836 of the Code, regulating the award of costs against executors and admin- istrators. Benjamin v. Ver Nooy (1901), 168 N. Y. 578. Where the Court of Appeals reverses a judgment and grants a new trial, " with costs to abide the event," without other limita- tion, the party finally succeeding in the action is entitled to tax the costs of the appeal. First Nat. Bank of Meadville v. Fourth Nat. Bank of N. Y. (1881), 84 N. Y. 469. Rule 16] Remittitur. 187 The words " with costs " in an order of affirmance or reversal in the Court of Appeals, in a case where the allowance of costs is discretionary, mean costs in that court only (Matter of Water Commissioners [1887], 104 N. Y. 677). "When leave to with- draw an appeal is granted " upon payment of all costs before notice of argument," the costs referred to mean those in the Court of Appeals. Broadway Savings Inst. v. Town of Pelham (1896), 148 N. Y. 737. The words " with costs," in a remittitur of reversal, in a case where there were several appellants, do not mean costs to each of the appellants. Isola v. Weber (1896), 12 App. Div. 267. When the Court of Appeals awards to a party costs in the trial court, the award carries with it not only the taxable costs and taxable disbursements, but such further sum, if any, by way of an extra allowance, as that court, in the exercise of a sound discre- tion, may award. Hascall v. King (1901), 165 N. Y. 288. Costs in special proceedings are in the discretion of the court and no costs follow its decision unless awarded by it. It seems that when granted they should be at the same rate as for similar services in an action. Matter of Prot. Epis. School (1881), 86 N. Y. 396. Costs of appeal in proceedings by common-law certiorari were not allowable, whether the proceedings come into the Court of Appeals upon appeal from a judgment or from an order super- seding the writ (People ex rel. Smith v. Village of Nelliston [1879], 79 N. Y. 638). Now, however, decisions on appeals in certiorari proceedings when " with costs," carry full regular costs of the Court of Appeals. As to costs of court below, see People ex rel. Hill v. Town Auditor (1897), 42 App. Div. 250; People ex rel. Am. Ex. Nat. Bk. v. Purdy (1909), 196 N. Y. 270. (As to number of term fees which can be included in costs of appeal to the Court of Appeals, see under Rule XIX, "Calendars.") Allowance of costs of action, after filing remittitur. — Where a party is defeated upon the trial of an action, and has therefore had no occasion or opportunity to ask for costs or an allowance, but succeeds, upon an appeal to the Court of Appeals, in obtain- ing a favorable judgment, the special term of the trial court may, 188 CouET OF Appeaxs Peactice. [Kule 16 upon application, after the filing of the remittitur and the en- tering of an order thereon, grant to such party the costs of the action and an additional allowance (Brown v. Farmers' L. & T. Co. [Supr. Ct. 1890], 24 Abb. N. C. 160, with note). Where the complaint in an equity action was dismissed on the trial, but on appeal the judgment was reversed, the order of the General Term affirmed by the Court of Appeals and judgment absolute ordered for plaintiff, it was held that the Special Term had power, upon the filing of the remittitur, to award costs of the trial and appellate courts and an extra allowance. Barnard v. Hall (1894), 143 N. Y. 339. Damages for delay. The Code of Civil Procedure, section 3251, subdivision 5, con- tains the following provision: Wiere a judgment is affirmed by the Cioirrt of Appeals, tie court may, in its discretion, also award damages, by way of costs, for the delay, not exceeding ten per centum upon tbe amount of the judgment; or, where it was rendered upon an appeal, upon the amount of the original judgment. Where not allowed. — Where an appeal presents debatable ques- tions not settled at the time it was brought, damages, by way of costs, for the delay caused by the appeal, authorized by the Code of Civil Procedure (§ 3251, subd. 5), will not be allowed. Tis- dale V. Del. & Hud. Canal Co. (1889), 116 K Y. 416. Where allowed. — The Court of Appeals granted ten per cent, damages for delay on affirmance of judgment in Warner v. Lessler (1865), 33 N". Y. 296, where the appellant submitted no points and indicated no errors; in Jackson v. City of Rochester (1891), 124 N. Y. 624, where the case did not differ materially from one which had recently been decided against the same appel- lant; and in Hinds v. Kellogg (1892), 30 IST. E. 1148, which was an action for work, labor and services, and materials furnished, in 1887, in the manufacture of articles which defendant refused to accept, on the ground that they were not delivered within the time stipulated, which was to be " as soon as possible." Other and more recent instances of the allowance of damages for delay are Simmons v. Craig (1893), 137 N. Y. 550, 553 (five per cent.) ; Reid V. Mayor of 'Mew York (1893), 139 K Y. 535, 538 (ten Eule 16] Remittitur. 189 per cent.) ; White v. City of Brooklyn (1893), 139 N. Y. 651 (ten per cent.) ; Zoliewski v. IST. Y. C. & H. R. R. R. Co. (1893), 140 N. Y. 621 (ten per cent.) ; Lifurgy v. Stewart (1893), 140 N. Y. 661 (five per cent.); Digener v. Underwood (1894), 37 N. E. 56Y (five per cent); Jones v. Moores (1894), 37 F. E. 569 (ten per cent.); Riker v. Mahoney (1894), 37 N. E. 570 (ten per cent.); Bates v. United Life Ins. Ass'n (1894), 37 N. E. 824; Devlin v. Kosel (1894), 37 N. E. 824 (fifty dollars) ; Donavan v. Sheridan (1894), 143 N. Y. 675 (ten per cent.); Van Keuren v. Miller (1894), 144 K Y. 636 (five per cent.); Van Keuren v. Miller (1896), 149 K Y. 583 (ten per cent); Dunlop V. Wilken (1898), 155 N. Y. 673; Burke v. Tindale, Id., 673; Roos v. Laird, Id., 683; White v. Jeffers (1899), 158 N. Y. 680; Storm v. N. Y. & IST. E. R. R. Co. (1899), 159 K Y. 538; Cram v. Crawford (1900), 162 E". Y. 627; Rockwell v. Petrie (1901), 165 K Y. 654; Ahr v. Marx (1901), 167 IST. Y. 582; Spero V. West Side Bank (1901), 168 IST. Y. 588; Lott v. Clason (1901), 168 ISr. Y. 652; .Stowasser v. Sherman Outfitting Co. (1901), 168 K Y. 661; Appleby v. Sewards (1901), 168 IST. Y. 664; Cohen v. Metropolitan St Ry. Co. (1902), 170 IST. Y. 588; Hasbrouck v. Marks (1902), 170 IST. Y. 594; Hill v. Chamberlain (1902), 170 E". Y. 595; Alignum Co. v. Stoll (1903), 174 K Y. 542; Briefer v. Stoll (1904), 177 N. Y. 577; Wheeler C. & E. Co. V. Packard Co. (1904), 178 N. Y. 571; Donnelly v. Burnham (1904), 177 N. Y. 546. Eestitution. To what court application should he made. — Where, after the collection of a judgment for costs entered on a remittitur from the Court of Appeals, the remittitur was recalled and the judg- ment modified by striking out the allowance for costs, it was held that it being doubtful whether relief could be granted under section 1323 of the Code, the remedy was not by a motion in the Appellate Court for restitution, but by action or proceedings in the court below to compel repayment. Wright v. Nostrand (1885), 100 K Y. 616. The court referred to in section 1292 of the Code (which pro- vides that when a judgment is set aside on motion, the court may direct and enforce restitution) is the court which set aside 190 CoTJET OF Appeals Peactice. [Kule 16 the judgment; hence, where after the collection of a judgment in an action it was vacated by the General Term, and the order of General Term was affirmed by the Court of Appeals, and an order was entered on the remittitur at Special Term, making the order of the Court of Appeals that of the court below, a motion for restitution was properly made at General Term. Market Nat. Bank v. Pacific Nat. Bank (1886), 102 N. Y. 464. In Hayes v. Nourse (N. Y. Com. PL, Spl. T. 1889), 25 Abb. N. C. 96, it was held that after reversal by the Court of Appeals of a judgment which the appellant has, pending the appeal, paid, an application for restitution should be made to the General Term of the Trial Court; that there is no power to entertain the appli- cation at a Special Term. But in Genet v. Del. & Hud. Canal Co. (1892), 61 N. Y. Supr. Ot. 332, it was held that after a reversal by the Court of Appeals, the Trial Court at Special Term had authority to order restitution of costs. The case was upon two causes of action; the plaintiff succeeded, at the trial, upon one, but was defeated as to the other, and the costs were set off and judgment for the difference only allowed, which was a|Brmed by the General Term. Both parties appealed to the Court of Appeals, which court affirmed so much of the judgment as was appealed from by plaintiff and reversed those parts appealed from by defendant, and dismissed the entire complaint with costs. It was held that defendant could obtain at Special Term, by way of restitution, a vacation of the order of set-off and leave to amend the judgment-roll by inserting the costs of the original dismissal of one cause of action. It was held by the Court of Common Pleas that when its judg- ment had been reversed by the Court of Appeals upon a ground which in effect disposed of the controversy and prevented another recovery upon the issues as framed, the former court would, the judgment having been paid, order restitution, but would not di- rect judgment therefor ; and that application for judgment of restitution must be made to the Court of Appeals. Hayes v. Nourse'(]Sr. Y. Com. PL, Gen. T. 1889), 25 Abb. N. C. 97. The Court of Appeals upon application for such restitution directed a recovery back by the appellant of the sum paid, with interest from date of payment, and remitted the proceedings for judgment in the court below. Hayes v. Nourse (Ct. App. xtule 16] Eemittitue. 191 1^89^), 2«5 Abb. N. C. 101. See Holly v. Gibbons (1904), 177 _ Reversal absolute.— Wheve the judgment of the appellate court IS given for the appellant absolutely and finally, no new trial being ordered, there is no ground for exercising any discretion, and restitution should be ordered. Estus v. Baldwin (Supr Ct 1853), 9 How. Prac. 80. Where plaintiff recovered judgment for money paid on a con- tract for the purchase of land, and the defendant paid the judg- ment, which was afterwards reversed by the Court of Appeals, it was held that, as the Appellate Court had determined in the de- fendant's favor the only issue involved, restitution of the sum paid by him should be ordered. Hayes v. Nourse (Is. Y. Com. PL, Gen. T. 1889), 25 Abb. K c. 95, supra. New trial directed. — Where the Appellate Court directs a new trial, restitution will not be directed unless the remittitur con- tains such direction or the judgment is reversed for such reasons as would preclude the plaintiff from succeeding on such new trial. Young V. Brush (Supr. Ct. 1864), 18 Abb. Prac. l7l. It seems that the Supreme Court has power, on a motion for restitution, where the judgment of reversal grants a new trial, in order to guard the respondent from loss on account of the in- solvency of the appellant, to make such order as it shall deem proper for the withholding and for the disposition and safe- keeping of moneys collected, pending the litigation. Marvin v. Brewster Iron Mining Co. (1874), 56 K Y. 671. Restitution — New trial. — Where, by the reversal of an er- roneous judgment in a creditor's action to compel an executor to sell real estate under a power of sale for the payment of debts, the appellant is entitled to a restitution of the property which is in the possession of the respondent, the fact that the judgment of reversal ordered a new trial does not affect the right to an im- mediate restitution of the property, accompanied by an account- ing as to mesne profits. Holly v. Gibbons (1904), 177 N. Y. 401. Possession of real estate. — When a judgment in a proceeding to recover possession of real property is reversed, it is almost a matter of course to award restitution of the premises to the party improperly dispossessed. People ex rel. Eeilly v. Johnson (1868), 38 K Y. 63, 66. 192 Court of Appeals Peacticb. [Rule 16 Where judgment for the plaintiff in an action of ejectment is reversed and a new trial ordered, restitution to the defendant of the premises in question will be ordered as of course ; but without prejudice to the rights, if any, of a purchaser pendente lite. Costar V. Peters (N. Y. Supr. Ct. 1868), 4 Abb. Prac. (N. S.) 53. Where a writ of assistance, improperly granted, has been exe- cuted, and is afterwards set aside, the person dispossessed under it is entitled to be restored to possession, and the Court of Ap- peals will, on reversing the order, award restitution of posses- sion. Chamberlain v. Choles (1866), 35 N. Y. 477. When reconveyance not necessary. — ^Where restitution is proper, of property which has been sold to a trustee for cred- itors, whose title has been extinguished by the reversal, it seems that no reconveyance is necessary ; all that is required is to restore the owner to possession. Wallace v. Berdell (1885), 98 X. Y. 480. Bents and profits. — ^Where, on reversal of a judgment, the Court of Appeals directed immediate restitution of certain real estate of which an appellant had been dispossessed by means of the erroneous judgment, and that the " mesne profits " up to the time of the restitu.tion be ascertained and paid to him, it was held that the intent was to provide for the same compensation for withholding the real estate as the appellant would have been en- titled to on recovering the same in an action of ejectment; and that an order, entered upon the decision, providing that " the value of the rents and profits " be ascertained, was substantially in accord with the decision. Wallace v. BerdeU (1885), 101 N. Y. 13. The owner of property withheld is not confined to the rente actually received by the party required to make restitution, but he should have either these or the rental value, as may be just under the circumstances. Id. Provision in order of restitution^ not in decision. — Where, on reversal, the Court of Appeals directed the restitution of certain real estate, and the order of restitution contained a provision not contained in the decision, to the effect that the restitution and payment of the rents and profits should be without prejudice to the right of the owner to commence and maintain any suit or proceeding for waste or injury to the property, it was held that, Kiule 16] Eemittitue. 193 wiiile the provision might be superfluous, the order as entered was proper, as it was not the intent of the' court to deprive the owner of any such right of action, if he had any. Id. Property must have heen taken under judgment reversed. — Under the provision of section 1323 of the Code, authorizing an Appellate Court, on reversal of a final judgment, to "make or compel restitution of property, or of a right, lost by means of the erroneous judgment," such court cannot restore property taken and sold under another judgment, although the effect of the reversal is to decide that the property was taken from the party legally entitled to it; the court may interfere in this sum- mary manner only to restore property or rights lost by the judg- ment reversed. Murray v. Berdell (1885), 98 IST. Y. 480. Restitution directed to a receiver. — It is not a ground of ob- jection to an order of restitution that it directs restitution to be made to a receiver of the party. Market ISTat. Bank v. Pa- cific Nat. Bank (1886), 102 N. Y. 464. Quo warranto. — Where, under an adverse judgment in an ac- tion in the nature of a quo warranto, the defendant, who was in the possession of the office, having a certificate of election from the duly constituted board of canvassers, was removed from office, it was held that, upon reversal of the judgment in the Court of Appeals, that court had power and it was proper to compel resti- tution of the rights lost by means of the erroneous judgment. People ex rel. Dailey v. Livingston (1880), 80 N. Y. 66. Attacliment. — ^Where a judgment in a suit by attachment had been paid, it was held, on reversal of the judgment with a direc- tion for a new trial, that restitution should be effected by order- ing a deposit of the moneys into court, to abide the result of the new trial. Britton v. Phillips (Supr. Ct. 1862), 24 How. Prac. 111. Where the reversal of a judgment and the restoration of prop- erty thereunder had the effect of reviving an attachment and exe- cution, it was held that an order by the court below that the at- tachment and execution, with the returns thereto, be taken from the files of the county clerk's office and delivered to the sheriff, and that the returns and the record of satisfaction of a judgment be canceled, was proper, under the circumstances. Wallace v. Berdell (1887), 105 ¥. Y. 7. 13 194' CouET OF Appeals Pkactice. [Eule 16 Restitution, luhen effected hy execution. — A direction for the restitution of moneys paid upon a judgment which has been set aside upon motion or reversed upon appeal, as authorized by the Code of Civil Procedure (§§ 1292, 1323), is in effect a judgment "for a sum of money" (§ 1240), and is therefore enforceable by execution. O'Gara v. Kearney (1879), 17 W. Y. 423. Proceedings for contempt, to enforce restitution. — ^Where a judgment for a sum of money is reversed, restitution cannot be enforced by proceedings for contempt (O'Gara v. Kearney [supra] ) ; but where the restitution of the possession of land is awarded, disobedience of the order may be punished as for a contempt. Dawley v. Brown (Supr. Ct. 1872), 43 How. Prac. 17. Notice to party affected. — It is irregular to permit a judgment of restitution to be entered without notice to the party to be af- fected thereby, where it has not been directed by the Appellate Court in the remittitur. Young v. Brush (Supr. Ct. 1864), 18 Abb. Prac. 171. Laches. — Eestitution may, in the discretion of the court, be denied on account of delay in moving therefor. Market Xat. Bank V. Pac. iN^at. Bank (1886), 102 IST. Y. 464. Provisions of Code not exclusive. — The provisions of the Code of Civil Procedure for restitution, on reversal of a judgment or order, of money or property, or its proceeds, of which the appel- lant has been deprived by reason of the erroneous judgment or order, were enacted in recognition of the common-law right of restitution, and to furnish additional means of enforcing that right. The remedies prescribed are therefore not exclusive, and a party entitled to restitution may obtain relief by action. Haebler v. Myers (1892), 132 N. Y. 363; see, also, S. C. re- ported below, with note, 24 Abb. JS^. C. 236. The provision of section 1323 of the Code, conferring upon an Appellate Court, or the General Term of a court in which .a judg-ment was recovered, the power to award restitution where the judgment was reversed, was not intended to and does not take away the authority of the court which rendered the judgment to direct restitution summarily. Piatt v. Withington (Supr. Ct. 1890), 19 Civ. Proc. E,. 378, citing Wright v. ISTostrand (1885), 100 E". Y. 616 {supra, p. 189), Holly v. Gibbons (1904), 177 W. Y. 401. Eule 16] Eemittitue. 195 When jurisdiction in Court of Appeals ceases. • Jurisdiction in the Court of Appeals is not lost until the re- mittitur has been filed in the court below and that court has taken some action thereon. Accordingly, the Court of Appeals has jurisdiction to make an ex parte order correcting a remittitur which had been filed with the court below, but upon which no action had been taken in that court. People ex rel. Smith v. Village of Nelliston (1879), 79 iSF. Y. 638. Before the above decision in People ex rel. Smith v. Village of l^elliston, some uncertainty had existed in the practice, as to the precise time when the Court of Appeals lost jurisdiction of a cause which had been brought to it on appeal — e. r/., it had been held in Burkle v. Luce (1848), 1 K Y. 239, that the Court of Appeals did not lose jurisdiction until its remittitur had been actually filed with the clerk of the court below, and that the mere delivery of the remittitur to the attorney for the successful party- did not have that effect; in Martin v. Wilson (1848), 1 N. Y. 240, that where, after affirmance, the remittitur had been filed with the clerk of the court below, the Court of Appeals lost jurig- diction of the cause so that it could not open a default therein ; in Dresser v. Brooks (1850), 2 X. Y. 559, that after a remittitur had been regularly sent to and 'filed with the court below, the Court of Appeals lost jurisdiction; in Palmer v. Lawrence (1851), 5 jST. Y. 455, that where the order entered by the clerk on a decision of the Court of Appeals did not correctly state the judgment of the court it would be amended on motion, notwith- standing the remittitur might have been sent to the court below and filed there; in Seacord v. Morgan (Supr. Ct. 1859), 17 LIow. Prac. 394, that there must be action in the court below, as well as filing there, to effect a change of jurisdiction; in Wilmerdings V. Fowler (Ct. App. 1873), 15 Abb. Prac. (N. S.) 86, that after the remittitur from the Court of Appeals had been filed in the court below, and the usual order entered thereon, it must be re- turned, by direction of the lower court, before the Court of Ap- peals could grant a reargument of the appeal ; and in Cushnian v. Hatfield (1873), 52 K Y^ 653, 15 Abb. Prac. (X. S.) 109, that until actually and regularly filed below, the remittitur was under the control of the Court of Appeals. 196 CotJET OF Appeals Peactice. [Eule 16 Return of remittitur for purposes of motion in Court of Appeals. No amendment, until remittitur returned. — When the re- mittitur has passed beyond the jurisdiction of the Court of Ap- peals, by being regularly filed in the court below, and judgment entered thereon, the Court of Appeals cannot amend the re- mittitur, or vacate a dismissal on which it was issued, or enter- tain a motion for reargument, until the remittitur has been re- turned by the court below. Salmon v. Gedney (18'78), 75 IST. Y. 479, 483; Jones v. Anderson (1877), 71 K Y. 599; Wilmerd- ings V. Fowler (Ct. App. 1873), 15 Abb. Prac. (K S.) 86. When return of remittitur will he requested. — After the Court of Appeals has lost jurisdiction of a cause by its remittitur hav- ing been filed in the court below and judgment entered thereon, it will, in a proper case, request its return by the court below, and allow a motion to stand over until jurisdiction is restored by the return of the remittitur. Bliss v. Hoggson (1881), 84 K Y. 667. If motion is granted, then the court below is requested to return the remittitur to the Court of Appeals to be amended accordingly. See Hascall v. King (1901), 165 N. y. 288; Montgomery v. Buffalo Ey. Co. (1901), 165 N. Y. 648. Although it seems the Court of Appeals would, if likely to lead to a disposition of the appeal favorable to the appellant, permit its remittitur, sent down on an affirmance of an order vacating an attachment, to be recalled to permit of an application to the court below for an amendment to the order appealed from so as to show that it was made on the ground that the justice of the court be- low, who granted the attachment, had no power or jurisdiction in the premises — yet, where that point has been considered on the hearing of the appeal and the proposed amendment would not aid the appellant, the motion will be denied. ISTational Shoe & Leather Bank v. Mech. Nat. Bank (1882), 89 X. Y. 467. Return of remittitur, by court helow. — In the absence of an ex- pression by the Court of Appeals of a desire or willingness that its remittitur should be returned, the judgment or order entered in the court below upon the remittitur will not be vacated and the remittitur returned to the Court of Appeals for the purpose of applying for a reargument, unless there appears to be some chance liule 16] Eemittitue. 19i7 that, under the decisions, a reargument will be ordered in that court. Hillyer v. Vanderwater (Supr. Ct. 1890), 11 N. Y. Supp. 1&7. But it seems, that if the court should in any manner indicate its desire or willingness that a remittitur sent down and filed with the clerk of the court below be returned, the court below would at once order any judgment or order that might have been entered upon the remittitur to be vacated and the remittitur itself re- turned to the Court of Appeals. Id. After the remittitur from the Court of Appeals has been filed in the court below and an order entered to carry it into effect, a motion to restore it to the Court of Appeals with a view to its amendment or correction there, cannot, be entertained by the court below without the express assent or direction of the appellate court, authenticated by its order (Selden v. Vermilya [1850], 3 Sandf. 683) ; or a suggestion from the Court of Appeals that the remittitur does not conform to its judgment, or has been irregu- larly issued. Bogardus v. Eosendale Mfg. Co. (1852), 1 Duer, 592. Jurisdiction before return of remittitur. — It is competent for a judge of the Court of Appeals, after its remittitur has been filed and order entered thereon in the court below, to make an order to show cause why the return of the remittitur should not be requested and a reargument granted, with a stay of proceedings in the meantime. Franklin Bank ISTote Co. v. Mackey (1898), 158 :^r. Y. 683. This was a motion at Chambers to vacate an order to show cause and a stay of proceedings granted by a judge of the Court of Appeals for the purpose of enabling the appellant to move for a reargument after a decision of affirmance. One of the grounds of the motion was that, the remittitur having been filed and order entered thereon below, the Court of Appeals had no jurisdiction and its judge was without power to make the order. The opinion proceeds as follows: " The order to show cause and stay were granted under the following state of facts: The case was decided by this court in favor of plaintiff April 19, 1898; the remittitur was filed with the clerk of the Supreme Court, city of INTew York, April 25th, and order entered, making the judgment of this court the judg- 198 CouET OF Appeals Peactice. [Rule 16 ment of the Supreme Court, May 16th. On the 24th of June, 1898, — being the last day of the June session of the court, — the counsel for the defendant and appellant applied for an order requiring the plaintiff to show cause before the court on the first Monday of October, 1898, why the return of the remittitur herein should not be requested, and why a reargnment of this cause should not be ordered, or, if such reargument should not be deemed proper, ^vhy the remittitur should not be amended in certain respects. This order was granted, with a stay of pro- ceedings pending the hearing and determination of the applica- tion. * * * This is a motion that the court request the return of the remittitur 1)y the court below for the purposes of the application. There is a very general misapprehension as to the practice of the co\u-t on motions for reargument or to amend the remittitur. It is often erroneously assumed that after the filing of the remittitur in the court below, and order entered thereon, this court is deprived of all jurisdiction in the cause. In Sweet v. Mowry, 138 X. Y. 650, a motion for reargument was granted, and a return of the remittitur requested. These acts of the court were held to be in resumption of jurisdiction. In Lawrence v. Church, 128 JST. Y. 324, a motion to amend the remittitur was granted, and the order entered requested the return of the remittitur by the court below, and when so returned it was ordered to be amended. In Moffett v. Elmendorf, 153 X. Y. 674, a motion to amend remittitur was granted, and order entered that the remittitur be recalled for that purpose. \ like motion was granted in Buchanan v. Little, 155 X. Y. 635. This later practice of the court is not necessarily inconsistent with the earlier cases, which hold that this court has no jurisdiction to grant a reargument or an amendment of the remittitur after the remittitur is filed and acted upon in the court below. AVilmerdings v. Fowler, 15 Abb. Prac. (X. S.) 86; Jones v. Anderson, 71 X. Y. 590; Cnshman v. Hadfield, ]5 Abb. Prac. (X. S.) 109; People ex rel. Smith v. Village of Xelliston, 79 X. Y. 638. It is compe- tent for this court to determine whether it will resume jurisdiction for any purpose, and, having decided to do so, it then requests the court below to return the remittitur so that reargument can be had or the remittitur amended, as the case may be. It is technically true that this court must be repossessed of the remit- Rule IG] Remittitue. 199 titur before an order made in the cause is effectual, but there is no objection to the return of the remittitur following the determina- tion of this court to resume jurisdiction. The Supreme Court is always reluctant to vacate its order and return the remittitur in the absence of an expression by this court that it desires such a course to be pursued. Hillyer v. Vandewater, 11 X. Y. Supp. 167. I am of opinion that there was jurisdiction to grant the order to show cause herein." Judgment not affected hy mere return of remittitur. — Although a remittiti^r has been remanded to the Court of Appeals, it can- not be said that the appeal in that court is still undetermined; for, until the judgment (or order of dismissal) of the Court of Appeals is vacated by that court, the judgment of the court below entered thereon remains in full force and is binding. Murray v. Jones (X. Y. City Ct. 1888), 2 jST. Y. Supp. 486, citing Xewton V. Harris (1850), 8 Barb. 306, which see. Where, after the entry of judgment below upon a remittitur sent down from the Coiirt of Appeals, a motion for reargument was granted, with a request to the court below to return the re- mittitur, which was done, and upon the reargument the former decision was reaffirmed, and the record sent back with a further remittitur, ordering and adjudging as in the first remittitur, and granting costs in the Court of Appeals, it was held that this left the order and judgment entered below on the first remittitur im- affected; that the resumption by the Court of Appeals of its jurisdiction of the appeal operated simply to suspend proceedings in the court below ; that the provisions of the first remittitur were not altered by the subsequent decision; that the award of costs in the latter related simply to costs on the second argument ; and that, therefore, a motion to set aside the judgment entered on the first remittitur was properly denied. Sweet v. Mowry (1893), 138 K Y. 650. Staying filing of remittitur. When filing of remittitur will he stayed hy court heloiv, for motion for reargument. — After an appeal has been determined by the Court of Appeals, the court below will not stay the filing of the remittitur, upon an affidavit of intention to apply for a reargument in the appellate court, and showing grounds 200 CouET OF Appeals Practice. [Kule 16 therefor. The court below ought not to question the decision of the appellate court nor delay enforcing it, without some sanction from that court or one of its judges. But where a judge of the Court of Appeals grants an order to show cause why a reargu- ment should not be had and directing that in the meantime the remittitur be stayed if it had not been sent down, the court below may properly order that the filing of the remittitur be stayed pending the application to the Court of Appeals, even though the remittitur had been sent down when the order to show cause was made. Jarvis v. Shaw (IST. Y. Supr. Ot. 1863), 16 -Abb. Prac. 415. (As to staying action on remittitur by order of a judge of the Court of Appeals, see 'Rule XVIII.) Amending remittitur. Amendment, so as to show grounds of decision, denied. — A motion to amend a remittitur by stating therein the grounds of the decision, on a showing of an intent to appeal to the Supreme Court of the United States, was denied, on the ground that the appellant could procure the transmission of a duly authenticated copy of the opinion of the court with the record, in People ex rel. Schurz v. Cook (18S8), 111 X. T. 688. Amendment, so as to permit further proof below, granted. — Where an affirmance by the Court of Appeals is based upon a de- fect of proof on a point not taken in the court below, the Court of Appeals may amend its remittitur so as to show that fact and that the affirmance is without prejudice to an application by the appellant to the court below to reopen the case and allow a rehearing on further proofs. Matter of Ingraham (1876), 64 K T. 310. Neiv condition cannot he inserted. — The Court of Appeals has no power to amend its remittitur by putting in some other condition than one imposed, on amendment of prior proceedings, by the court below. Symson v. Selheimer (1887), 1 Silv. Ct. App. 455. Cannot he amended on evidence outside record. — The Court of Appeals cannot re-examine a case and correct a remittitur upon affidavits or other evidence outside the i-ecord, making a case dif- ferent from that brought up by the veenrd. Matter of Peugnet (1876), 67 K Y. 441, 446. Rule 16] Remittitue. 201 Motion to amend, when in effect a motion for reargument. — In Genet v. Delaware and Hudson Canal Co. (1893), 137 N. Y. 626, a motion to amend the remittitur was denied, where it ap- peared that the motion was in substance and effect a second motion for a reargument after one had been made and denied, brought more than a year after the remittitur had been sent down by express direction of the coxirt, without any claim or suggestion that any point or authority had been overlooked, and practically and substantially amounting to an appeal from the Second Division of the Court of Appeals. Amendment of record below, as indicated by remittitur. Where the Court of Appeals granted an amendment of a com- plaint, under the power conferred by section 723 of the Code of Civil Procedure, so as to show the character in which the plain- tiff sued, it was considered proper that when its remittitur went down, the complaint and the judgment as entered should be amended in the respect indicated. Reeder v. Sayre (1877), 70 K Y. 180, 191. Remittitur as evidence. The remittitur is conclusive evidence as to the regularity of the appeal, in an action on the undertaking. Hill v. Burke (1875), 62 N. Y. 111. Decisions, remittiturs, and opinions; procedure in reference to. Decisions. — Decisions are handed down at the opening of court on each Tuesday during sessions and on the last Friday of each session, and are delivered to the clerk for entry, and issuance of remittiturs thereon. The decisions are immediately furnished to the newspaper associations for publication throughout the State; and the clerk telegraphs the decision in each case to the respective attorneys. Remittiturs. — Remittiturs are made out as soon as possible after the decisions are handed down, and are transmitted to the attorney for the prevailing party in each case decided, unless a ■request has been received by the clerk from the attorney on the other side to hold the remittitur; in that event, the remittitur will be held for a reasonable time, if not demanded by the party 202 CouET OF Appeals Pkactice. [Rule IG entitled thereto; if so demanded, it will be transmitted, unless a stay shall have been obtained. The fee for a remittitur is two dollars. Opinions. — Opinions in cases decided are delivered to the State reporter, as provided by section 210 of the Code of Civil Procedure, and all requests for copies and inquiries in reference to opinions should be addressed to him. The only opinions filed with the clerk are those which are not reported by the State reporter. Such opinions are deposited with the clerk immedi- ately after the publication of the reports of other cases decided at the same time, as prescribed by section 210 of the Code of Civil Procedure. Until siich publication, all opinions are in charge of the reporter. Criminal causes. The Code of Criminal Procedure provides as follows : Judgment on appeal; amendment; execution of death sentence. § 543. Upon hearing the appeal the appellate court may, in cases where an erroneous judgment has been entered upon a lawful verdict, or findiag nf fact, correct the judgment to conform to the judgment, or finding; in all other cases they must either reverse or affirm the judgment appealed from, and in cases of reversal, may, if necessary or proper, order a new trial. If the judgment of death is affirmed, the Court of Appeals, by ;in order under its seal, signed by a majority of the judges, shall fl^ the week during which the original sentence of death shall be executed, and such order shall be sufficient authority to the agent and warden of any Str.te prison for the execution of the prisoner at the time therein specified, and tlie agent and warden must execute the judgment accordingly. Judgment of appellate court, how entered and remitted. § 547. When the judgment of the appellate court is given, it must be entered in the judgment book and it certified copy of the entry forthwith remitted to the clerk \\itli whom the original judgment-roll is filed, or, if u, new trial be ordered in anotlier county, to the clerk of that county, unless the judgment be rendered in the absence of the adverse party, in which case, the court may direct it to be retained, not exceeding ten days. Decision and return to be remitted. § 548. The decision of the court and the return shall be remitted to the court below in the same form and manner as in civil actions. When jurisdiction of appellate court ceases. § 549. After the certificate of the judgment has been remitted as provided in section five hundred and forty-seven, the appeUa.ce court l.'.'is no further jurisdiction of the appeal, or of the proceedings thereon; and except as provided in .section five hundred and forty-three, all ordi.'is, which r-ay be Rule 17] Affirmaxce of Default. 203 necessary to carry the judgment into effect, must be made by the court to -which the certificate is remitted, or by any court to which the cau^e may thereafter be removed. Provision for reassignment of time for execution of sentence in capital cases, when the time originally fixed (§ 49'2) has passed, is also made by sections 503 and 504 of the Code of Crim- inal Procedure. Amendment of entry of judgment. — The omission of the clerk of the trial court in his entry of judgment to state the offense for which the conviction was had does not render the sentence void but the defect is amendable under section 543 of the Code of Criminal Procedure and upon appeal to the Court of Appeals other parts of the record may be referred to and if they furnish evidence of the fact so omitted, the court may conform the entry to the fact. People v. Bradner (1887), 107 N. Y. 1. RULE XVII. Affirmance by Default. When a judgment or order shall be affirmed by the de- fault of the appellant, the remittitur shall not be sent to the court below, unless this court shall otherwise direct, until ten days after notice of the affirmance shall have been served [by the attorney for the respondent] on the attor- ney for the appellant [and proof thereof filed with the clerk.] Service of the notice shall be proved to the clerk by affidavit, or by the written admission of the attorney on whom it was served. Object of the rule. The object of this rule is to protect the appellant against sur- prise, and to give him ample time to make his application for relief, or to obtain an order staying proceedings to enable him to do so. But if he neglects to avail himself of the benefit of the time thus given, and the remittitur has gone down and been filed in the court below, and the court has lost control of the case, it is too late to move to open the default. Latson v. Wallace (Ct. App. 1854), 9 How. Prac. 334. (•See, under Rule XVI, as to when the jurisdiction of the Court of Appeals ceases and it loses control of a case.) 204: CouET OF Appeals Peactice. [Rule IS Practice of the clerk's office. Unless tlie court stays the remittitur or directs it to issue other- wise than is provided by the rule, the clerk will, on the expiration of ten days after service on the appellant's attorney of notice of an affirmance under Rule XV, proved as required by this rulo, make up the remittitur and transmit it to the respondent's attorney. ETJLE XVin. Enlarging Time — Revoking Orders. The time prescribed by these rules for doing anj^ act may be enlarged by the court or by any of the judges thereof; and any of the judges may make orders to stay proceed- ings, which, when served with papers and notice of motion, shall stay the proceedings, according to the terms of the order. Any order may be revoked or modified by the judge who made it; or, in case of his absence or inability to act, by any of the other judges. Enlarging time. The Code of Civil Procedure provides as follows: How time enlarged, before its expiration. § 781. Where the time, "within which a proceeding in an action after its commencement, must be taken, has begun to run, aad has not expired, it may be enlarged, upon an aflBdavit showing grounds therefor, by the court, or by a judge authorized to make an order in the action. Copy of affidavit must be served. § 782. In a case specified in the last two sections, the affidavit, upon which the order was granted, or a copy thereof, must be served with a copy of the order; otherwise the order may be disregarded. Belief after time has expired. § 783. After the expiration of the time within which a pleading must be made, or any other proceeding in an action, after its commencement must be taken, the court, upon good cause shown, may, in its discretion, and vipon such terms as justice requires, relieve the party from the consequences of an omis- sion to do the act, and allow it to be done; except as otherwise specially pre- scribed by law. When time cannot be extended. § 784. A court, or a judge, is not authorized to extend the time fixed by law, within which to commence an action ; or to take an appeal ; or to apply to continue an action, where u party thereto has died, or has incurred a dis- Rule 18] Enlaeging Time — Revoking Oedees. 205 ability; or the time fixed by the court, -within which a supplemental complaint must be made, in order to continue aji action; or an action is to abate, unless it is continued by the proper parties. A court, or a judge, cannot allow rither of tho.se acts to he done, after the expiration of the time fixed by law, or by the order, as the case may be, for doing it; except in a case specified in the next isection. Qualification of last section. § 785. ¥\Tiere a. party, entitled to appeal from a judgment or order, or to move to set aside a final judgment for error in fact, dies, either before or after this chapter takes effect, and before the expiration of the time within which the appeal may be taken, or the motion made, the court may allow the appeal to be taken, or the -motion to be made, by the heir, devisee, or personal representative of the decedent, at any time within four months after his death. Staying proceedings. Section 775 of the Code of Civil Procedure is as follows : When stay of proceedings not to exceed twenty days. § 775. An order to stay proceedings in an action, for a longer time than twenty days, shall not be made by a judge, out of court, except to stay pro- ceedings under an order or judgment appealed from, or where it is made upon notice of the application, to the adverse party, or in ciise.s where sjjecial pro- Aision is otherwise made Ijy law. Application of rule. — This rule, authorizing orders by a single judge to stay proceedings, and making such orders effectual when served with motion papers, has reference to general stays of pro- ceedings in causes pending in the Court of Appeals. Cushman V. Hatfield (1873), 52 IST. Y. 653; 15 Abb. Prae. (K S.) 109. Staying filing of remittitur. — The Court of Appeals has con- trol of its OAvn remittitur, in whosesoever hands it may be, until it is actually and regularly filed in the court below; and an order of any one of the judges temporarily staying the filing thereof is valid and operative, although not accompanied by motion papers or notice of motion. Cushman v. Hatfield, supra. The above decision overrules a contrary statement as to the power of a single judge of the Court of Appeals to stay a remit- titur, in Lawrence v. Bank of Republic (N". Y. Supr. Ct. 1866), 6 Rob. 497 ; and it is now settled that the Court of Appeals does not lose control of its remittitur until some action, in addition to mere filing, has been taken on it in the court below. See People ex rel. Smith v. Village of IS^elliston (1879), 79 :^^. Y. 638, under Rule XVI, supra. 206 CorET ov Ai'peals Practice. [Eule 19- Stay for more than twenty days. — The restriction imposed br section 775 of the Code of Civil Procedure upon the power of a judge out of court to stay proceedings for more than twenty days except upon notice, does not apply to a stay for the purpose of a motion for reargument of an appeal. Franklin Bank ISTote Co. V. Mackey (1898), 158 N. Y. 683. The filing of a remittitur in violation of an order of the Court of Appeals, is, in legal effect, no filing. Marshall v. Macy ( Supr. Ct. 1877), 5 Wkly. Dig. 90. Revoking orders. Inherent power of courts. — Every court of record, unless re- strained by positive enactment, has the power, on motion, to vacate its judgment or process to prevent a perversion thereof or to frustrate oppression (Morgan v. Holladay [1874], 38 X. T. Supr. Ct. 117) ; and this inherent power has not been impaired by the Code of Civil Procedure. Levy v. Loeb (IST. Y. Supr. Ct. 1878), 5 Abb. N. C. 157. ETJLE XIX. Calendars. When a new calendar is ordered by the court, tlie clerk shall place thereon all causes in which notices of argument, with proof or admission of service, have been filed in his office; and, also, if ordered by the court, all other causes in which the returns have been filed in his office; and the causes so put on the calendar by the direction of the court will be heard in their order as if regularly noticed. Calendars; notice of argument. Position on calendar regulated hy date or filing return. — A notice of argiiment is of no effect, and a cause cannot be placed on the calendar of the Court of Appeals, until the return has been filed. Reformed Church v. Browai (Supr. Ct. 1862), 24 How. Prac. 89. A motion to place a ca\ise on the calendar as of the time when the return sh(juld have been regularly filed, was denied, for the reason that such motions would derange the whole calendar. Crain v. Rowley (Ct. App. 1849), 4 How. Prac. 79. Eule 19] Galexdars. 207 The original date of filing return is not affected by amendment. Livingston v. Miller (Ct. App. 1852), 7 How. Prac. 219. Appellant not compelled to notice. — It is not a ground for dis- missal of appeal that the appellant has failed to notice the case for argument -and place it on the calendar ; if the respondent wishes to expedite it, he may notice. Mchols v. MacLean (1885), 98 K T. 458. Respondent not precluded, by noticing, from moving to dis- miss. — A respondent is not precluded from making a motion to dismiss the appeal by the fact of his having noticed the case for argument and placed it on the calendar. Stoughton v. Levsds (Ct. App. 1885), 2 How. Prac. (K S.) 331. Terms or sessions of the court; when new calendar made. Sessions and recesses. — The Judiciary Law, section 5-4, pro- vides as follows : Terms of Court of Appeals. § 54. The terms of the court of appeals must be appointed to be held, at such times and places as the court thinks proper, and continued as long as the public interest requires. A term of the court may be appointed to be held in a building, other than that designated by law for holding courts. A term may be adjourned from the place where it is appointi^i to be held, to another place in the same city. One or more of the judges may adjourn a term, without day, or to a day certain. (Paragraph 1, from Code of Civil Procedure, § 196, para- graphs 2, 3 and 4 from Code of Civil Procedure, § 197.) The practice of the court is to hold sessions of four weeks or more each with intervening recesses, usually of one or two weeks, throughout the year, except during the summer when a recess is usually taken from the latter part of June to the first Monday of October. On adjourning for a recess, the court appoints and an- nounces the date when the next session will begin. The sessions are regularly held at the Capitol, in Albany, the court sitting from 2 o'clock to 6 o'clock p. m. The court does not sit on Saturdays. Term fees. — The question whether the sessions of the court are parts of one term continuing through the year, or are separate 208 CouET OF Appeals Peactice. [Eule 19 terms, has not been passed upon by the Court of Appeals, but it has been raised in the courts of original jurisdiction, in connec- tion with the taxation of term fees in bills of costs, under section 3251, subdivision 5, of the Code of Civil Procedure, which con- tains the following, among the provisions for costs upon an appeal to the Court of Appeals : For each term, not exceeding ten, at which the oaus^ is on the calendar, excluding the term at which it is argued, or otherwise finally disposed of. ten dollars. The Supreme Court has held, in Whiteman v. Leslie (1879), 1 Law Bull. 50, and in Powell v. Is". Y. C. & H. E. R. Co. (1888), 14 Civ. Proc. E. 125, that there being no formal assignment of terms in the Court of Appeals, it is to be considered as holding only one term a year, commencing in January and continuing, with recesses, through the year, and that the time of making the calendar does not control; and, consequently, that only one term fee for each calendar year can be allowed in any cause. Other decisions on this subject, but made before the adoption of the Code of Civil Procedure and based on earlier statutory provisions as to terms of the Court of Appeals, are Palmer v. De Witt (N". Y. Supr. Ct. 1872), 42 How. Prac. 466; Macy v. Nelson (Supr. Ct. 1875), 49 How. Prac. 204 and Carpenter v. Willett (IST. Y. Supr. Ct. 1865), 28 How. Prac. 376 ; S. C, 3 Eob. 700. Nexv calendars; when made. — A new calendar is not made at any fixed time, but on or about the last day of any session at which it is apparent that not enough causes remain undisposed of to occupy the court for another session, a new calendar is ordered to be made for the ensuing session. The order therefor, which is published throughout the State, contains a statement of the date on or before which returns and notices of argument for the new calendar must be filed, and the date of the beginning of the session at; which the new calendar will be taken up. Notices of wrgument. — On the promulgation of such order for a new calendar, notices of argument for the day specified in the order must be served, and filed in the clerk's office, with proof or admission of service, on or before the date fixed therefor in the order, to entitle any cause to be placed on the calendar, unless the Kule 20] Motion fob Eeaegument. 20y' order for a new calendar contains a direction to place thereon all causes in which returns have been tiled. But such a direction will apply only to the general calendar, and a notice of argument, con- taining a claim and statement of the ground of preference, as re- quired by Eule XIV, must, in all cases, be served and filed, with proof or admission of service, to entitle a cause to be placed on the preferred calendar. Making up calendar. — Causes not entitled to a preference are placed on the general calendar in the order of dates of filing the respective returns, except as a cause may be advanced on second and subsequent appeals, or set back by reason of having been passed or exchanged. Preferred causes (except appeals from orders entitled to be heard on motion day) precede the general calendar, in the prescribed classes of preference (see under Eule XIV), being arranged in the several classes according to dates of filing returns. Appeals from orders entitled to be heard on motion day (see Kule XI), and criminal causes added after the calendar is made up (see Eule IX), are given numbers after the general calendar. The court will not add cases to an existing calendar even though they are entitled to preference, unless some question of public importance is involved or the circumstances are extraordinary. Goldberg v. Markowitz (1904), 179 X. Y. 596. Xo civil causes, except appeals under Eule XI entitled to be heard, can be added to the calendar after it is made up, except by special order of the court, upon a motion duly made; and such order will be granted only under extraordinary circumstances. Motions to correct calendar. — Motions to correct the calendar, or to change the position of a cause thereon, should be noticed for and be made on the first motion day of the session at which a new calendar is taken up. KULE XX. Motion for Eeargument. [Motions for reargument must he submitted on printed briefs, without oral argument, on notice to the adverse party, stating briefly the ground upon which a reargument 14 210 CoTJET OF Appeals Practice. [Rule 20 is asked, and the points supposed to have been overlooked or misapprehended by the court, with proper reference to the particular portion of the case, and the authorities relied upon.] Eequisites of motion for rearg^ment. Papers must show ivliat. — A motion for reargument will not be entertained unless founded on papers clearly showing either that some question, decisive of the case and duly submitted by counsel, has been overlooked by the court, or that the decision is in conflict with an express statute or a controlling decision overlooked by the court, or to which its attention was not drawn through the neglect or inadvertence of counsel. Mount v. Mitchell (1865), 32 W. Y. Y02. In Marine Nat. Bank v. IsTat. City Bank (1874), 59 X. Y. 67, 73, the court stated that it proposed to adhere to the general rule laid down in Mount v. Mitchell {supra), and that motions for re- argument would not be entertained unless brought within it. The same rule was applied in Auburn City Nat. Bank v. Hunsiker (1878), 72 N. Y. 252, 259, and was reaffirmed in Fosdick v. Town of Hempstead (1891), 126 K Y. 651. But in O'Brien v. Mayor of New York (1894), 142 N. Y. 671, the court enter- tained a motion for reargument in consideration of the extraor- dinary importance of the case, although the motion was not based on any of the grounds usually recognized by the court as required to support a motion for reargument. The papers on a motion for reargument should be sufficient to enable the court to determine whether the decision requires cor- rection in any respect ; hence, on a motion based on alleged errors in the dissenting opinion of the court below, on which the case was decided in the Court of Appeals, the case on appeal contain- ing the opinion should be furnished. Anderson v. Continental Ins. Co. (1887), 106 K Y. 661. Motion for reargument — Practice. — While there is no pre- scribed limitation of time within which a motion for reargument may be made, it is understood that such a motion should be made as soon as possible after the announcement of the decision, to avoid the imputation of laches. Eule 20] MoTio.Y foe, Reargument. 211 Reargwnent of capital case.— While in a capital case the ap- pellant will not be held to the rule that points alleged to have been overlooked by the court and made the basis of a motion for re- argument must have been raised by counsel on the argument, yet, where no important objection has been overlooked, the motion must be denied ; the fact, however, that exceptions raised upon the trial are not specifically alluded to or separately discussed in the prevailing opinion does not indicate that they were not considered before the decision of the appeal. People v. Patrick (1905) 183 K Y. 52. Instances of granting a reargument are People ex rel. Wasson V. Schuyler (1877), 69 K Y. 2i2, 245; Sweet v. City of Syra- cuse (1891), 128 ]S". Y. 680, 129 N. Y. 316, 13S N. Y. 650; Franklin Bank M"ot6 Co. v. Mackey (1898), 158 N. Y. 68:]. Record must present question. — A reargument must be on the record used on the original argument, and if it does not contain an exception presenting the question desired to be raised, a re- argument cannot be had. Hunt v. Church (1878), 73 jST. Y. 615. Insufficient grounds for motion. Settlement of questions in other actions. — A reargument will not be granted to obtain a settlement of questions which may arise in other pending actions ; nor to obtain an elaborate expression of reasons, when the only question involved in the appeal has been necessarily passed upon by the decision of the court, without a written opinion. Becker v. Howard (1876), 66 IT. Y. 5. Death of partij ; motion hefore substitution had. — The fact that at the time of the argument and decision of an appeal the plaintiff was dead, though that fact was not then known to counsel nor dis- closed to the court, is not a ground for a reargument, before sub- stitution has been regularly had. Blake v. Griswold (Ct. App. 1886), 9 K E. 493. Omission to present point. — The omission of counsel to present on the argument or notice in his points a question arising in the case is not, as a general rule, a ground for reargument; the ordinary rule that an exception not raised on argument is to be deemed abandoned will govern. Rogers v. Laytin (1880), 81 K Y. 642; Eno v. Mayor of K Y. (Ct. App.' 1877), 4 Wkly. Dig. 246. ^'lii CoTJKT OF Appeals Practice. [Rule 20 Hardship resulting from judgment absolute. — It is not a i^round for granting a reargument, after rendition of judgment absolute against the appellant on an appeal from an order grant- ing a new trial, that injustice will result to him from such judg- ment, where no error was committed in granting the order ap- pealed from. The result could have been avoided bv taking the new trial ; and if parties stipulate their causes into the Court of Appeals, instead of availing themselves of the new trial ordered below, they necessarily assume the hazard of injurious conse- quences. Godfrey v. Moser (1S7C), 06 X. Y. 2.50; Williams v. Lindblom (1894), 14;) X. Y. OT.".. Amendment of defects since arginnent. — A reargument will not be granted on proof of the amendment of defects by reason of which the original decision had held that a corporation had not been created — such proof not having been in the case below, to a review of which the Court of Appeals is confined. X. Y. Cable Oo. V. Mayor of X. Y. (1887), 104 X. Y. 1. Amendment showing reversal on facts. — Where a General Term order of reversal did not state that it was made upon the facts, and upon appeal therefrom the counsel for the respondent proceeded to .argument without applying for a postponement to enable him to procure an amendment of the order, and after the appeal was decided against him applied to the General Term and obtained an amendment by inserting such a statement, a reargu- ment upon the amended order was refused, it being held that the respondent was concluded by his election to have the case decided on the questions of law. Cudaliy v. Ehinehart (1802), IfS-j X. Y. 675. Erroneous assunipllon thai pniid not in opinion iras overlool:ed. — It is not the duty of the court in its opinions to satisfy counsel in every case that the prn]ier judgment has been given and for the right reason ; nor to answer every suggestion of, and review every ciise cited by disappointed counsel. Counsel must assume that the court is familiar with and not inattentive to its own de- cisions, and has, with reasonable intelligence and industry, con- sidered their ai'guments. Kamp v. Kamp (1S74), 59 X. Y. 212, 221. It is not to be a-«umed liocause a fact appearing in the record or authority cited on ai'gumont in the Court of Appeals, which is Rule 20] Motion for Eeargument. 21^ deemed important by counsel, is not noticed or commented on in the opinion that it has not been considered and due weight given to it in arriving at the decision, and the omission to notice it is not a ground for a motion for reargument. Dammert v. Osborn (1894), 141 N. Y. 564; Carleton v. Lombard (1896), 149 ¥. Y. 601; Colonial City Traction Co. v. Kingston City E. E. Co. (1897), 154 jST. Y. 493; and the fact that certain points made upon the argument are not discussed in the opinion does not war- rant the conclusion that they were overlooked. Burke v. Con- tinental Ins. Co. (1906), 184 IT. y. 570; People v. Ladew (1907), 190 N.Y. 543. The omission of the court, when sanctioning a former decision, to notice and discuss in its opinion supposed distinctions, is not sufficient to warrant a supposition that they have escaped observa- tion. Terry v. Wait (1874), 56 N. Y. 91. Insufficient ground for motion for reargument. — It is not the usual practice of the Court of Appeals to permit rearguments for the purpose of correcting some error in the reasoning of the court as expressed in the opinion, when it is admitted that the decision itself is correct. Matter of Lyman (1899), 161 IST. Y. 119. Proceedings in conference cJiamier. — Proceedings in the con- ference chamber of the judges are not to be inquired into to sus- tain a motion for reargument. Mason v. Jones (1850), 3 iST, Y, 375. Alleged error in printed record. — In Burt v. Oneida Com- munity (1893), 138 IT. Y. 649, a motion for reargument upon the ground of an alleged error in the record on appeal, consisting of a misstatement in the findings of the referee, was denied, where it was admitted that a correct copy of the record had been filed with the reporter of the court, and it appeared that the copies handed up on argument and upon which the court rendered its decision agreed with this correct copy, and that if there were any faulty or defective copies printed they were not before the court and could not have affected its determination. Belief by new trial, rather than by rear^ment. A motion for reargument was denied upon the ground that, as a new trial had been ordered and the remittitur had gone down, either party could, if dissatisfied with the result, bring the case 214: Court of Appeals Practice. [Eule 20 again to the Court of Appeals for final disposition, in MecL & Trad. Bank v. Dakin (1873), 54 N. Y. 681. The Court of Appeals, in People v. Ballard (1892), 136 IST. Y. 639, refused a reargument of an appeal determined in the Second Division of that court, upon a question claimed to have been over- looked, where it appeared that such question might be determined upon the new trial which had been ordered by the judgment rendered. In Griggs V. Day (1893), 137 JST. Y. 542, a motion for a re- argument upon the ground that the opinion of the court declared certain securities to be valueless, although the referee had re- fused so to find, was denied, it appearing that the expression in the opinion could not conclude the party on the new trial which had been granted. Motion after remittitur has gone down. After the remittitur has gone down and been filed and acted upon in the court below, the Court of Appeals is without juris- diction to entertain a motion for reargument (Cochran v. Ingersoll [1876], 66 ]Sr. Y. 652; People ex rel. Smith v. Village of Nellis- ton [1879], 79 N". Y. 638) ; and the remittitur must be returned before a reargument can be granted (Wilmerdings v. Fowler [Ct. App. 1873], 15 Abb. Prac. [IST. S.] 86.) But it is competent for the Court of Appeals to determine whether it will resume jurisdiction for any purpose, and, having decided to do so, it then requests the court below to return the re- mittitur, so that reargument can be had or the remittitur amended, as the case may be. Franklin Bank l^ote Co. v. Mackey (1898), 158 K Y. 683. (iSee further, as to restoration of jurisdiction by return of re- mittitur, under Eules XI and XYl, and as to stay of proceedings under Eule XVIII.) Judgment on remittitur not affected hi/ renrfjiunent. — A recall of the original remittitur and a reargument of the case in the Court of Appeals, resulting in .a reaffirmance by that court of its first decision, do not of themselves affect proceedings already had in the court below upon the remittitur or the judgment entered thereon. Sweet v. Mowry (1893), 138 X. Y. 650. Reargument — Time within which motion should he made. — Mthough there is no time limit prescribed by statute or the rules. Eule 20] Motion foe Eeaegument. 215 within which a motion for reargument must be made, still, as matter of convenience, to avoid the imputation of laches, and to prevent complications arising from enforcement of the decision on the original argument, the motion should be made as soon as possible after the rendition of the decision. Motion for reargument in guise of a motion to amend re- mittitur. — In Genet V. Delaware and Hudson Canal Co. (1893), 137 N. Y. 626, a motion to amend the remittitur was denied, where it appeared that the motion was in substance and effect a second motion for a reargument after one had been made and denied. Procedure on moving for reargument. The remittitur. — If it is intended to move for a reargument, a stipulation should be obtained from the other side, or an order from one of the judges (see Rule XVIII), staying the remittitur, in case it has not gone down, or staying proceedings thereon in case it has gone down but not been acted upon. If the remittitur has been filed and action taken thereon in the court below, appli- cation should be inserted in the moving papers for a reargument, and the court should be asked therein to request the return of the remittitur and thereupon to grant a reargument. Motion "papers. — Motions for reargument may be noticed for any Monday when the 'Court is in session. As such motions are re- quired to be submitted without oral argument, the original motion, papers and notice, with joroof or admission of service, and eighteert copies of the printed briefs of each side on the motion, should be filed with the clerk, on or before the Friday preceding the day named in the notice. (See under Eule XI, page 157.) Order. — On decision of the motion, the clerk drafts and enters the proper order, and transmits a certified copy thereof to the attorney for the prevailing party. The fee for entering the order and furnishing a certified copy thereof is one dollar. RULES FOR THE ADMISSION OF ATTORNEYS AND OOUNSELORS-AT-LAW.* OEDER ADOPTING RULES. In the Court of Appeals. Dec. 20, 1906. Ordered, That the following amended Eules regulating the Admission of Attorneys and Counselors-at-Law be and the same hereby are adopted, in pursuance of the provi- sions of the Code of Civil Procedure, such Eules to take effect July 1, 1907. RULE I. Admission and License. No person shall be admitted to practice as an attorney or counselor in any court of record in this State, without a regular admission to the bar and license to practice granted by [the] Appellate Division of the Supreme Court. Changes in the Rule. This rule is taken from the first clause of former Rule I. The other portions of that rule, which provided for the examination of applicants for admission, by the justices of the General Terms of the Supreme Court, or by a committee of lawyers appointed by them, have been superseded hy the amendment of 1894 to former section 56 of the Code of Civil Procedure (as amended, chap. 946, L. 189'5'), creating a State Board of Law Examiners, now embodied in the Judiciary Law, which is given below. * These rules, as now numbered and arranged, were adopted October 22, 1894, and took effect January 1, 1895. ' Certain amendments were made on December 2, 1895, to take effect January 1, 1R9G, and are hereinafter referred to as amendments of 1896. When "former rules" are mentioned, the refer- ence is to the rules which were adopted October 28, 1892, and were in force •tintil January 1, 1895; and, when any rule or provision is said to be "new," it is meant that it was introduced by the revision of 1894, which went into effect January 1, 1895. The amendments made on December 20, 1906, in effect July 1, 1907, are indicated by being printed in brackets, and those made April 24, 1908, in effect June 1, 1908, by being printed in italics. Rule 1] Admission of Attorneys. 217 Examination, admission and suspension. The Judiciary Law provides as follows : Power of Court of Appeals as to admission of attorneys and counselors. § 53. 1. The Court of Appeals may from time to time make, alter and amend, rules not inconsistent with the Constitution and statutes of the State, regulating the admission of attorneys and eounselors-at-law, to praetic.;! in all the courts of record of the State. 2. The court may make such provisions as it shall deem proper for admission to practice as attorneys and counselors, of persons who have been admitted to practice in other states or countries. 3. The court shall prescribe rules providing for a uniform system of examination of candidates for admission to practice as attorneys and coun- selors, which shall govern the State Board of Law Examiners in the per- formance of its duties. 4. The rules established by the Court of Appeals, touching the admission of attorneys and counselors to practice in the Comts of record of the State, shall not be changed or amended except by a majority of the judges of that court. A copy of each amendment to such rules must, within five days after it ia adopted, be filed in the oflSce of the Secretary of State. 0. Nothing contained in this chapter prevents the Court of Appeals from dispensing, in the rules established by it, with the whole or any part of the stated period of clerkship required from an applicant, or with the examination where the applicant is a graduate of the Albany law school, being the law department of the Union University, or of tlie law depart- ment of the University of The City of New York, or of the law school of Columbia College, or of the law school of the University of Buffalo, or the New York Law School, or the college of law, Cornell University, or of the school of law, Syracuse University, or the Brooklyn Law School of St. Lawrence University, or Fordham University Law School, and produces his diploma upon his application for admission. (Formerly embodied in the Code of Civil Procedure, sections 193, 5G, 57, 58.) Appointment and compensation of State Board of Law Examiners. § 56. The members of the State Board of Law Examiners shall be ap- pointed from time to time, by the Court of Appeals, as provided in section 461 of this chapter. The Court of Appeals shall fix the compensation of the members of the said board. (From the Code of Civil Procedure, section 56, part.) Examination and admission of attorneys. § 460. A citizen of the State, of full age, applying to be admitted to practice as an attorney or counselor in the Courts of Record of the State, must be examined and licensed to practice as prescribed in this chapter. (From Code of Civil Procedure, section 56, part.) State Board of Law Examiners continued. § 461. The State Board of Law Examiners is continued. Said board shall consist of three members of the bar, of at least ten years' standing, 218 Court of Appeals Peactice. [Rule 1 who shall be appointed, from time to time, by the Court of Appeals, and shall hold office, as a member of such board, for a term of three years, and until the appointment of his successor. (From the Code of Civil Procedure, section 50, part.) Times and places of examinations. § 462. There shall be examinations of all persons applying for admis- sion to practice as attorneys and counselors-at-law at least twice in each year in each judicial department, and at such other times and places as the Court of Appeals may direct. (From Code of Civil Procedure, section 56, part.) Certification by State Board of successful candidates. § 463. The State Board of Law Examiners shall certify to the Appellate Division of the Supreme Court of the department in which each candidate has resided for the past six months every person who shall pass the examination, provided such person shall have in other respects complied with the rules regulating admission to practice as attorneys and counsel- ors, which fact shall be determined by said board before examination. (From Code of Civil Procedure, section 56, part.) Fee for examinations. § 465. Every person applying for examination for admission to practice as an attorney and counselor-at-law shall pay such fee, not to exceed fifteen dollars, as may be fixed by the Court of Appeals as necessary to cover the cost of such examination. On payment of one examination fee the applicant shall be entitled to the privilege of not exceeding three examinations. (From Code of Civil Procedure, section 56, part.) Attorney's oath of office. § 466. Each person admitted as prescribed in this chapter must, upon his admission, take the constitutional oath of office in open court, and subscribe the same in a roll or book, to be kept in the office of the clerk of the Appellate Division of the Supreme Court for that purpose. (Prom Code of Civil Procedure, section 59, part.) Race or sex no bar to admission to practice. § 467. Race or sex shall constitute no cause for refusing any person examination or admission to practice. (From Code of Civil Procedure, section 56, part.) Admission to and removal from practice by Appellate Division. § 88. 1. Upon the certificate of the State Board of Law Examiners, that a person has passed the required examination, if the Appellate Division of the Supreme Court in the department in which such person lives shall liiile 1] Admission of Attohneys. 219 find such person is of good moral character, it shall enter an order licensing and admitting him to practice as an attorney and counselor in all courts of the State. (From Code of Civil Procedure, section 56.) 2. An attorney and counselor, who is guilty of any deceit, malpractice, crime or misdemeanor, or who is guilty of any fraud or deceit in pro- ceedings by which he was admitted to practice as an attorney and counselor of the Courts of Record of this State, may be suspended from practice, or removed from office, by the Appellate Division of the Supreme Court. Any fraudulent act or representation by an applicant in connection with his application or admission shall be sufficient cause for the revocation of his license by the Appellate Division of the Supreme Court granting the same. (From Code of Civil Procedure, sections 56, 57.) 3. Whenever any attorney or counselor-at-law shall be convicted of a felony, there may be presented to the Appellate Division of the Supreme Court «, certified or exemplified copy of the judgment of such conviction, and thereupon the name of the person so convicted, shall, by order of the court, be stricken from the roll of attorneys. (From Code of Civil Pro- cedure, section 67.) 4. Upon a reversal of the conviction for felony of an attorney and counselor-at-law, or pardon by the President of the United States or Governor of this State, the Appellate Division shall have power to vacate or modify such order or debarment. (From Code of Civil Pro., section 67.) 5. The presiding justice of the Appellate Division making the order of designation of a district attorney within the department to prosecute a, case for the removal or suspension of an attorney or coimselor, or the order of reference in such cases, may make an order directing the expenses of such proceedings to be paid by the county treasurer of the county where the attorney or counselor removed or suspended, or against whom charges were made as prescribed in section 476 of this chapter, had his last known place of residence or principal place of business, which expenses shall be a charge upon such county. (From Code of Civil Procedure, section 68.) Suspension of attorney from practice must be on notice. § 476. Before an attorney or counselor is suspended or removed as pre- scribed in section eighty-eight of this chapter, a copy of the charges against him must be delivered to him personally or, in case it is established to the satisfaction of the court, that he cannot be served within the State, the same may be served upon him without the State by mail or otherwise as the court may direct, and he must be allowed an opportunity of being heard in his defense. It shall be the duty of any district attorney within a department, when so designated by the Appellate Division of the Supreme Court, to prosecute all cases for the removal or suspension of attorneys or counselors. (From Code of Civil Procedure, section 68.) Attorney convicted of felony shall cease to be attorney. § 477. Any person being an attorney and counselor-at-law, who shall be convicted of a felony, shall, upon such conviction, cease to be an attorney 220 Court of Appeals Peactice. [Rule 1 and counselor- at-law, or to be competent to practice as such. (From Code of Civil Procedure, section 67.) Suspension or removal of attorney effective in all courts. § 478. The suspension or removal of an attorney or counselor, by the Supreme Court, operates as a. suspension or removal in every court of the State. (From Code of Civil Procedure, section 69.) Action against attorney for lending his name in suits and against persons using name. § 479. If a person knowingly permits a person not being his general law partner, or a clerk in his office, to sue out a mandate, or to prosecute or defend an action in his name, he, and the person who so uses his name, each forfeits to the party against whom the mandate has been sued out, or the action prosecuted or defended, the sum of fifty dollars, to be recovered in an action. (Code of Civil Procedure, section 72.) Duties of clerk of Appellate Division as to person admitted to practice law. § 264, subd. 6, of the Judiciary Law provides as follows: 6. The clerk of each department of the Appellate Division, upon the payment of the fees allowed by law, must deliver to the person admitted to practice as an attorney and counselor a certificate under his hand and official seal, stating that such person has been so admitted, and that ho has taken and subscribed the constitutional oath of office as prescribed in section 466 of this chapter. (From Code of Civil Procedure, section 59.) Contempts punishable civilly. § 753. A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to ii. civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in either of the following cases: 1. An attorney, counselor * * * in any manner duly selected or ap- pointed to perform a judicial or ministerial service, for a misbehavior in his office or trust or for u, wilful neglect or violation of duty therein; or for disobedience to a, lawful mandate of the court, or of a judge thereof, or of an officer authorized to perform the duties of such a judge. 3. A party to the action or special proceeding, an attorney, counselor, or other person, for the non-payment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution cannot be awarded for the collection of such sum; or for any other disobedience to a lawful mandate of the court. 4. A person, for assuming to be an attorney or counselor, or other officer of the court, and acting as such without autliority; ■ " ** (Formerly Code of Civil Procedure, section 14.) Rule 1] Admissiox ok Attorneys. 231 The of5ce of attorney. An attorney is an officer of the courl. — Attorneys, receiving their authority from the court, are deemed its officers, and their license is an assurance, not only of their competency, but of their character and title to confidence. The direct control of the courts over them as officers, by -way of summary discipline and punishment to compel them to performance of their duty, or to suspend or degrade them, is retained and exercised as a guaranty of their fidelity. Hamilton v. Wright (1868), 37 X. Y. 502. An attorney is an officer of the court and is not a public offiicer of the State in such a sense as to be entitled to have his right to the offiice determined by a legal action; his right to practice is, therefore, the subject of inquiry and examination by the General (Term of the Department in which he practices, and if he has obtained his license without authority of law, it may be revoked by a summary proceeding, brought by any person who can supply the information necessary to justify proper action by the court. Matter of Burchard (1882), 27 Hun, 429. Tenure of office; residence. — ^Attorneys are not public officers within the meaning of the statute which provides that every office shall become vacant by the incumbent ceasing to be an inhabitant of the State. Their tenure of office is during life, subject to re- moval or suspension by the courts. But while this is so, the courts have always required that an attorney should reside within the State; and an attorney-at-law, who is a nonresident of this State, has no authority or right to, and cannot practice in the courts of the State. Richardson v. Brookljoi City & ISTewtown R B. Co. (Supr. Ct. 1862), 22 Hiow. Prac. 368. An exception to this rule has been created by section 470 of the Judiciary Law, which provides that — A person, regulaa-ly admitted to practice as an attorney and counselor, in the courts of record of the State, whose office for the transaction of law busi- ness is -within the State, may practice as snch attorney or counselor, although he resides in an adjoinin;? State. (From Code of Civil Proc, § 60.) Suspension or clisharmcnt. — In a proceeding to discipline an attorney the power of review in the Court of Appeals ends when it appears that the proceeding has been instituted and conducted in accordance with the statutes and rules authorizing it ; that no 222 CouET OF Appeals Practice. [Eule 1 substantial legal right of the accused has been violated; that no prejudicial error has been committed in the reception or exclu- sion of testimony, and that there is some evidence to sustain the findings upon which the order is based. The power and discre- tion of the Appellate Division in the infliction of punishment when guilt is established are not subject to review in the Court of Appeals. Matter of Goodman (1910), 199 X. Y. 143. Right to admission confined to citizens of the State. Limitation, not prohibited iy Federal Constitution. — The right to practice in the State courts is not a privilege or immunity of a citizen of the United States within the meaning of the first section of the fourteenth amendment to the Federal Constitution, which provides that " No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Bradwell v. The State (187'2), 16 Wall. 130. The power of a State to prescribe the qualifications for admis- sion to the bar of its own courts, is unaffected by the Federal Con- stitution, and the Supreme Court of the United States cannot in- quire into the reasonableness or propriety of the rules it may establish. Id. A law school graduate may apply for admission in a depart- ment other than where he resides. Matter of Burchard, 27 Hun, 429. Aliens. — -An alien may not, imder the provisions now in force, be admitted to practice as an attorney and counselor-at-law in this State, although it seems that under the present Constitution of the Siate the Legislature has power to authorize the admission of persons not citizens of the United States. Matter of O'Neill (1882), 90 N. Y. 584. See Matter of Maggio, 27 App Div. 129. This disability of aliens is to be noticed in connection with Eule II, which provides for the licensing of persons who have practiced for three years in another country. An applicant under that rule must, as well as applicants in general, be a citizen of the United States at the time of making his application; and the fact of his having declared his intention to become a citizen is not enough. Id., and see, also, under Eule II. One who applies for examination for admission after one year's law study in this State, on the ground of having been admitted and remained for one year as a practicing attorney in another Riile 1] Admission of Attoeneys. i'ii3 State or country, as provided by subdivision second of Eule IV, is, by tbe terms of subdivision first of that rule, required to prove that he is a citizen of the United States and a resident of the State of New York, as in said rules provided. Nonresidents. — A nonresident citizen of the United States was not entitled, as matter of right, to admission to the bar of this State even before the enactment of section 56 of the Code of Civil Procedure, which limits the right to " a citizen of the State," — as was held in Matter of Henry (1869), 40- N. Y. 560. The question there arose under the clause in the Constitution of 1846, then in force, which provided that "Any male citizen of the age of twenty-one years, of good moral character, and who possesses the requisite qualiiications of learning and ability, shall be entitled to admission to practice in all the courts of this State ; " and the words " any citizen " were construed to mean " any citizen of this State." This clause was omitted from the Constitution by the amendment of 1869, and at present the whole subject is left to the Legislature and the courts. The verbal difference between the phrase used in the statute (§56, Code Civ. Proc.) " a citizen of the State," and that in the rules (Rule IV, subd. 1), " a citizen of the United States * * * and a resident of the State," is not a real variance, as, by force of the fourteenth amendment to the Federal Constitution, citizens of the United States are citizens of the State wherein they reside. Section 58 of the Code (section 53 [subdivision 5], Judiciary Law) ; law schools. The authority conferred upon the Court of Appeals by section 58 of the Code of Civil Procedure, to dispense with certain re- quirements in the case of graduates of the law schools named therein, has not been exercised, except in so far as attendance at those institutions, in common with other law schools, is placed by the rules upon the same footing as serving a clerkship in a law office, by permitting the whole or any part of the required period of law study precedent to examination for admission to be passed either in attendance at a law school or in serving a clerkship in a law office. See Rule V, subdivision 1. The section was adopted in order that the courts might not be compelled, as they were by former laws, to admit graduates of the law schools named, unconditionally. See Matter of Burchard (1882), 27 Hun, 224 CouiiT OF Appeals Pkactic-E. [Eule 1 429. The adoption of the section was accompanied by a repeal of the acts which had required graduates of the law schools to be admitted on production of their diploma, and although the eifect of the repeal was postponed by a saving clause (Laws of 18*77, chap. 4-17, § 3, subd. 17), and by several subsequent temporary acts, it became operative in 1882, and at present graduates of all law schools are subject to the rules and to the requirement of ex- amination equally with other candidates for admission. The effect of section 58 of the Code " is merely to refer the entire matter to the Court of Appeals, in the confidence that that high tribunal will establish such rules as will most effectually promote the true interests of the law schools, as well as of the legal profession and the people generally." Commissioners' note to § 58, Throop's Code Civ. Proc. (ed 1880). Corporations not to practice law. ■Section 280' of the Penal Law provides as follows: It shall be unlawful for any corporation to practice or appear as an at- torney-at-law for any person other than, itself in any court in this state or before any judicial body, or to make it a business to practice as an attorncy- at-law, for any person other than itself, in any of said courts or to hold itself out to the public as being entitled to practice lati"", lor to render or furnish legal services or advice, or to furnish attorneys or counsel or to render legal services of any kind in actions or proceedings of any nature or in any other way or manner, or in any other manner to assume to be entitled to practice law or to a»s\ime, use or advertise the title of lawyer or attorney, attorney- at-law, or equivalent terms in any language in such manner as to convey the impression that it is entitled to practice law, or to furnish legal advice, services or counsel, or to advertise that either alone or together with or by or through any person, whether a duly and regularly admitted attorney-at- law, or not, it has, owns, conducts or maintains a law office or an office for the practice of law, lor for furnishing legal advice, services or counsel. It shall be unlawful further for any corporation to solicit itself or by or through its officers, agents or employees any claim or demand for the purpose of bringing an action tliereon or of representing as attorney-at-law, or for fur- nishing legal advice, services or counsel to, a person sued or about to be sued in any action or proceeding or against whom an action or proceeding has been or is about to be brought, or who may be affected by any action or proceeding which has been or may be instituted in any court or before any judicial body, or for the purpose of so representing any person in t!ie pursuit of a,ny civil remedy. Any corporation violating the provisions of this section shall be lialile to a fine of not more than five thousand dollars and every Rule 1] Admission of Attorneys. 226 officer, trustee, director, agent, or employee of such corporation wlio directly or indirectly engages in any of the acts herein prohibited or assists such corporation to do such prohibited acts is guilty lof a misdemeanor. The fact that any such officer, trustee, director, agent, or employee shall be a. duly and regularly admitted attorney-at-law shall not be held to permit or allow any such corporation to do the acts prohibited herein nor shall such fact be a defense upon the trial of any of the persons mentioned herein for a violation of the provisions of this section. This section shall not apply to any cor- poration lawfully engaged in a business authorized by the provisions of any existing statute, nor to a corporation lawfully engaged in the examination and insuring of titles to real property, nor shall it prohibit a corporation from employing an attorney or attorneys in and about its own immediate affairs or in any litigation to which it is or may be a party, nor shall it apply to organizations organized for benevolent or charitable purposes, or for the purpose of assisting persons without means in the pursuit of any civil remedy, whose existence, organization or incorporation may be approved by the Appella,te Division of the Supreme Court of the department in which the principal office of said corporation may be located. [Added by L. 1909, ch. 483, in effect September 1, 1909.] Corporations cannot practice law. The Appellate DivisioB is only authorized by section 280 of the Penal Law to approve the right of a corporation to practice law where it is organized for benevolent or charitable purposes, or for the purpose of assisting persons without means in the pursuit of any civil remedy. The court will not authorize a business corporation to practice law where it is organized to do a general law and collection business to make agreements with and employ attorneys and other representatives for the transaction of such business, even though it appears that the greater part of its bus- iness is the collection of claims without resort to law. So far as the business of such corporation is confined to the collection of claims without legal proceedings, it is not within section 280 of the Penal Law, which prohibits the practice of law by corporations. Matter of Associated Lawyers' Co. (1909), 134 App Div. 350; Matter of Co-operative Law Co. (1910), 198 N. Y. 479. Title guaranty companies. The prohibition against corporations practicing law does not cover title guaranty companies, organized under the Insurance Law and authorized to examine titles, guarantee the correctness 15 22'6 CouBT OF Appeals Pbactioe. [Rule 2 of searches and insure against loss by reason of defective titles. The searching of titles is open to all and guaranty companies may employ either lawyer or laymen to transact their business. Mat- ter of Co-operative Law Co. (1910), 198 N. Y. 479. RULE n. Admission After Practicing Three Years in Another State or Country, Etc. Any person who has been admitted to practice, and has practiced three years as an attorney and counselor in the highest court of law in another State, and any person who has thus practiced in another country, or who, being an American citizen and domiciled in a foreign country, has received such diploma or degree therein as would entitle him, if a citizen of such foreign country, to practice law in its courts, may, in the discretion of [the] Appellate Divi- sion of the Supreme Court, be admitted and licensed with- out an examination. But he must possess the other qualifi- cations required by these rules and must produce a letter of recommendation from one of the judges of the highest court of law of such other State or country, or furnish other satisfactory evidence of character and qualifications. A person who resides in an adjoining State, upon com- pliance with this rule, may, without change of residence, be admitted to practice on sufficient proof that he intends forthwith to open and permanently to maintain an office for the transaction of law business in this State, (Amended June 24, 1903.) Changes in the Rule. This rule is substantially the same as former Rule VTI, the only material change consisting in making admission without ex- amination dependent upon the discretion of the Supreme Court in all cases within the rule ; while in the former rule the right to such admission in the case of one who had been admitted and had practiced three years in another State was not so qualified. The last sentence was added in 1903. Rule 2] Admission of Attoknets. 227 (luaMcations of applicants. The " other qualifications required by these rules," which it is understood all applicants for admission without examination under this rule must possess, are good moral character (see Rule III), citizenship of the United States, full age, and an actual and not constructive residence in the State of New York, for not less, etc. (See Rule IV.) It has been expressly decided by the Court of Appeals that one who seeks admission under this rule, upon the ground that he has practiced for three years in another country, must show, among " the other qualifications required by these rules," that he is a citizen of the United States at the time of making his appli- cation; the fact that he has declared his intention to become a citizen is not sufficient. Matter of O'Neill (1882), 90 W. Y. 584. In that case, it appeared that William L. O'lSTeill, a British subject, had practiced as an attorney-at-law in England from 187'5 to 1881. Upon proof of that fact, and upon satisfactory evidence of his character and proof of age, and of his having declared his intention to become a citizen, the Supreme Court, at General Term in the Second Department, in May, 1881, made an order admitting him to practice as an attorney and counselor-at- law in the courts of this State. O'Neill so practiced from that time until, upon the petition of one Newman, after notice to and hearing O'Neill in his own behalf, the General Term, in Septem- ber, 1882 (see 27 Hun, 5990, made an order vacating its order ad- mitting O'Neill, on the groimd that it had no power or jurisdic- tion to grant such order, and directed that his name be stricken from the roll of attorneys and counselors. From this last order O'Neill appealed to the Court of Appeals, where the action of the General Term was affirmed in December, 1882, with the following opinion by Tracy, J., in which an inter- esting history of this rule is given: By the Constitution of 1846 it waa provided, that "any male citizen of the age of twenty-one years, of good moral character, and who possesses the requisite qualifications of learning and ability, shall he entitled to practice in all the conrts of this State." (Const, of 1846, art. 6, § 8.) This article of the Constitution of 1846 was superseded hy the new article which took effect 228 CotTET OF Appeals Peactxce. [Kule 2 on the Ist of January, 1871. The admission of attorneys and counselors is now regulated by statute. We have no doubt of the power of the Legisla- ture to admit persons not citizens to practice as attorneys and counselors of the courts of this State. The question to be determined is whether, by the law of the State in force at the time of the appellant's admission, citizen- ship was among the qualifications required to entitle a person to be admitted as an attorney. By section 3, chapter 486, Laws of 1871, it is provided that " every male citizen of the age of twenty-one years, hereafter applying ♦ * ♦ shall be examined by the justices of the Supreme Court, or a committee ap- pointed by said court at a General Term thereof, and if such person so applying shall be found to have complied with such rules and regulatiions as may be prescribed by the Court of Appeals, and shall be approved by said justices of the Supreme Court for his good character and learning, the court shall direct an order," etc. The rules adopted by the Court of Appeals in pur- suance of this statute provided that, " to entitle an applicant to an examina- tion as an aittorney, he must prove to the court, among other things, that he is a citizen of the United States, twenty-one years of age, and a resident of the department within which the application is made, and that he is a person of good moral character.'' (Rule 2, 1871.) By Rule 8 it was provided, that " perrons whi hav? been admitted and have practiced three years as attorneys in the highest courts of law in another State may be admitted without exam- ination to practice as attorneys, solicitors and counselors in the courts of thi<; St'^t" b'lf s c'' persons mus' hive been resi-ients of this State before appljring for admission." In 1877 the rules were so amended that "persons who have been admitted as attorneys in the highest courts of another State may be admitted to examination as attorneys and counselors, if they have served a regular clerkship of one year in the office of a practicing attorney of the Supreme Court of this State, and shall in other respects be entitled to 6uch examination." As an applicant for examination is required to prove that he is a citizen of the United States, this rule plainly requires that one who seeks an examination on the ground that he has been admitted as an attorney of another State, must ibe a citizen of the United States. In 1880, Rule 8 of 1871 became Rule 7, and was amended by adding after the clause providing for the admission of practitioners of three years' standing from other States, the following: "And the General Term of the Supreme Court may, in its discretion, so admit and license any person who has thus practiced in another country, but he must possess the other qualifications required by these rules, and must produce a letter," etc. It is under this clause, first inserted in 1880, that the appellant was admitted. It will be observed that the clause applicable to the admission of practitioners of three years' standing from another State, as first adopted, required that such persons should have become residents of this State before applying for admission; but when the clause was added allowing the General Term in its discretion to admit and license any person who has thus practiced in another country, the clause •requiring a person to have become a resident before making the application was dropped, and in its stead was inserted the requirement that he must Eule 3] Admission of Attoenets. 229 possess the other qualifications required by these rules. The amendment pro- viding for the admission of persons who have practiced for three years in another country, was made to meet the case of a citizen of the United States who had thus practiced in another couBtry. But to guard against conferring the right of admitting persons not citizens of the United States, under the general language of this amendment, the other change was made in the rule by which the applicant, whether he be a practitioner from another State or from another country, is required to possess the other qualifications required by these rules. There can ba no doubt that citizenship is among " the other qualifications " required of those who apply for an examination to be admitted as attorneys, and it follows that one who seeks admission upon the ground that he has practiced for three years in the courts of another country must show that he is a citizen of this country at the time of mailing his application. The appellant, not being a citizen, was not entitled to admission, and the action of the General Term in revoking his license was proper and should be affirmed, without costs. RULE III. Pierequisites to Admission on Examination. All other persons may be admitted and licensed upon producing and filing with the court the certificate of the State Board of Law Examiners that the applicant has satis- factorily passed the examination prescribed by these rules and has complied with their provisions, and upon produc- ing and filing with the court evidence that such applicant is a person of good moral character, which [must] be shown by the [affidavits of two reputable persons of the town or city in which he resides, one of whom must be a practicing attorney of the Supreme Court. Such affidavits must state that the applicant is, to the knowledge of the affiant, a per- son of good moral character, and must set forth in detail the fact upon which such knowledge is based; but such affidavits shall not be conclusive and the court may make further examination and inquiry] . Changes in the Rule. The first clause of this rule is new, being in conformity with the amendment of 1894 to section 56 of the Code of Civil Pro- 230 Court of Appeals Peactice. [Rule 3 cedure. The remainder of the rule is taken from subdivision second of former Rule IV. with the substitution of the concluding words, " the court may make further examination and inquiry," for the words " the court must be satisfied on this point from ex- amination and inquiry." Certificate of State Board of Law Examiners. For the statutory provision for a certificate from the State Board of Law Examiners to the Appellate Division of the Su- preme Court of the successful passing of examination, as a con- dition precedent to admission by the Appellate Division, and for the determination by the board, before examination, of the fact of compliance, by candidates for admission, with the rules regu- lating admission to practice, see under Rule I. Action of Appellate Division on application for admission; when reviewable. It was held in Matter of Cooper (I860), 22 K Y. 67; S. C. suh nom. Matter of Graduates, 11 Abb. Prac. 301, that in the admission of attorneys and counselors, the Supreme Court acts judicially, and its function is not of an executive character ; that an application for such admission is a special proceeding, and an order made therein denying the applicant's right to admission is a final order, affecting a substantial right, and therefore appeal- able to the Court of Appeals. That court, consequently, enter- tained the appeal, and reversed the order. In this case the Supreme Court had held that it was without power to admit the applicants, on the ground of the unconstitu- tionality of the act under which the application was made (chap- ter 262, Laws of 1860, since repealed, which provided for the admission of graduates of the law school of Columbia College on the production of their diplomas), and on this ground the case was distinguished in Matter of Beggs (1876), 67 N. y. 120. In that case it was held that the approval of the good character of an applicant for admission rests with the Supreme Court, and its exercise of this discretionary power cannot ordinarily be re- viewed or interfered with by the Court of Appeals ; but that it seems that if the Supreme Court should deny, in a particular Kule 4] Admission of Attorneys. 231 case, that it had the legal power to admit, though satisfied that the applicant was possessed of the requisite qualifications, the Court of Appeals might review the order so far as to discover whether the power existed; so, also, if a clear case of abuse of discretion appeared, the Court of Appeals might correct it. It was also held that an appeal from an order of the Supreme Court refusing to approve the good character of an applicant, and denying his admission on that ground, could not be sustained where the case did not present all the facts before the Supreme Court and on which it acted. See, also. Matter of Droege (1909), 197 K Y. 44. RULE IV. Prerequisites to Examination by State Board of Law Examiners; Periods of Law Study; Admission in Another State or Country. To entitle an applicant to an examination as an attorney and counselor, he must prove by his own affidavit,* to the satisfaction of the State Board of Law Examiners : First. That he is a citizen of the United States, twenty- one years of age, stating his age, and [an actual and not a constructive] resident of the State [for not less than six months immediately preceding], and that he has not been examined for admission to practice and refused admission and license within three months immediately preceding. Second. That he has studied law, in the manner and according to the conditions hereinafter prescribed for a period of three years, and that he is the same person men- tioned in his annexed preliminary papers; except that if the applicant be a graduate of any college or universityt his period of study may be two years instead of three ; and * See Form for Applicant's Affidavit on page 263. t Construed by Court of Appeals, May 14, 1900, as follows: "On reading and filing the request of the tjriversity of the State of New York, and after hearing the State Board of Law Examiners in relation thereto, It is Ordered that applicants for examination for admission to the bar are to be deemed graduates of colleges or universities within the meaning and intent of the Rules for the Admission of Attorneys and Counselors-at-Law when they 232 CoTJET OS Appeals Peactice. [Kule 4 except also that persons who have been admitted as attor- neys in the highest court of original jurisdiction of another State or country, and have remained therein as practicing attorneys for at least one year, may be admitted to such examination after a period of law study of one year within this State. Changes in the Eule. The introductory paragraph is the same as in former Rule IV, except the words " to the satisfaction of the State Board of Law Examiners," which were substituted in 1894 for the words " to the court," in conformity with the amendment of 1894 to section 56 of the Code, ,and except the words " by his own affidavit," inserted. Subdivision first is the same as in former Rule IV, with the exception of the insertion of the words " stating his age," the substitution of " a resident of the State " for " a resident of the department in which the application is made," the omission of the words " in any other department," after the word " examined " and the omission of the words " which proof must be made by his own affidavit," which formerly ended the paragraph, and with the exception of the words in brackets, inserted in 1906. Subdivision second is new in form, but retains the same periods of preparation for examination as heretofore prescribed by Rule III, with the substitution, however, of the terms " studied law " and " law study " for " clerkship in the office of a practicing at- torney," in conformity with subsequent provisions of the present rules (see Rule V) which permit the requirements for preparatory work to be fulfilled either by attendance at a law school or by service of an office clerkship. In the provision in reference to persons who have been admitted as attorneys in another State or have successfully completed a course of college instruction that requires as a condition of graduation at least six full years in liberal arts and sciences in advance of a completed eight year elementary course. "It is further ordered: that the University of the State of New York may issue law students' certificateB upon substantial equivalents and substitutes, to be defined by the rules of the University, in all cases not provided for by the Rules for the Admission of Attorneys and Counsellors at law now in force." Rule 4] Admission of Attoeneys. 233 country (based upon former Rule VI), the requirement that they must have remained therein as practicing attorneys for at least one year is new. The Amendments of 1896. The amendments of 1896 require that all the facts mentioned in Eule IV, must be proven to the satisfaction of the State Board of Law Examiners by the affidavit of the applicant, who must in addition state his age, in order that the Board may be able to judge whether he began his law studies under the age of eighteen years ; he must also swear that he is the person mentioned in the preliminary papers annexed to his application and in the proofs required by the provisions of Rule VI, infra. Examination in any department. The State Board of Law Examiners has adopted the following rule: Eule II. — Each applicant must be a citizen of the State, of full age; he may be examined in any department, whether a resident thereof or not, but the fact of his having passed the examination will be certified to the Appel- late Division of the judicial department in which he has resided for the six months prior to his examination. He must, however, entitle his papers in the department dn which he resides. (See note to this Rule, page 287, post.) Applicant's affidavit. The applicant's own affidavit should set forth, in addition to the statements required by the rule, his residence for the preceding six months, with street and number, if any, in order to furnish the State Board of Law Examiners with the information necessary to enable the Board to comply with the provisions of section 56 of the Code, that " such board shall certify to the Appellate Di- vision of the Supreme Court for the department in which each candidate has resided for the past six months, every person who shall pass the examination," and to facilitate the transmission of communications from the Board of Law Examiners. (See, further, under Rule VI.) College graduates. In applying the provision of subdivision second of this rule, that " if the applicant is a graduate of any college or university, 234 CouET OP Appeals Peactioe. [Eule 4 his period of study may be two years instead of three," the State Board of Law Examiners will require proof that the college or university of which an applicant claims to be a graduate, main- tains a satisfactory standard in respect to the course of study com- pleted by him. (See Rule III of State Board of Law Exaaniners on this subject, given under Eule V, page 239. Admission in another State or country. The provisions of the rules concerning admission in another State have always been .construed and applied as comprehending in the term " State " the District of Columbia and the Territories. In addition to the provisions of this rule, permitting persons who have been admitted in another State or country, and who thereafter have remained one year as practicing attorneys in such other State or country, to be examined for admission here after having subsequently studied law one year in this State it is to be observed that by force of subdivision 1 of Rule V, the prescribed year's law study in this State may be pursued either at a law school or in a law office, or partly in one way and partly in the other, instead of being restricted to a law office as heretofore, and that the exemption from Regents' examination, heretofore con- ferred by old Rule VI, is continued in subdivision 3 of Rule V. If a clerkship is pursued, the certificate prescribed by subdivision 4 of Rule V must be made and filed at the beginning of the clerk- ship by the attorney in whose office it is begun. The words " remained therein," in this rule, imply residence in the State where the candidate was admitted during the year that he is required to practice therein, and merely practicing in that State while continuing to reside in this State is not enough. The Regents' examination cannot be evaded by a resident of this State by securing a license to practice in another State, and practicing there without a change of residence. Matter of Simp- son (1901), 167 IST. Y. 403. Eiile 5] Admission of Attoenets. 235 RULE V. Study of Law; Regents' Ezamination and Certificate; Vacations; Clerk- ship Certificate. Applicants for examination shall be deemed to have studied law within the meaning of these rules, only, when they have complied with the following terms and condi- tions, viz: First. The provisions for requisite periods of study must be fulfilled by serving a regular clerkship in the office of a practicing attorney of the supreme court in this state after the age of eighteen years ; or, after such age, by [satisfac- tory attendance upon and successfully completing the pre- scribed course of instruction* at] an incorporated law school, or a law school connected with an incorporated col- lege, or university, having a law department organized with competent instructors and professors, in which instruction [as hereinafter provided] is regularly given ; or, after such age, by pursuing such course of study in part by attendance at such law school, and in part by serving such clerkship. Second. If the applicant be a graduate of a college, or university, he must have pursued the prescribed course of study after his graduation and, if he be a person admitted to the bar of another state or country, he must have pursued his prescribed period of study after having remained [as a practicing attorney] in such other state or country for the period of one year. * The rules do not require a law school to certify to the State Board of Law Examiners that its students have been "graduated" or have "received a degree " in order that they may be admitted to examination ; it being sufficient for the certificate to state that the student has " successfully com- pleted the prescrilbed course of instruction " during the period named. A law school may properly grant a certificate of " part time " for less than a year, but the applicant should be credited only with the time actually spent in the law school, to the same extent and no more as if the time had been spent in a law office; and the proofs must show to the satisfaction of the State Board of Law Examiners that the applicant successfully pursued the prescribed course of instruction during that time. Matter of New York Jjaw School (1907), 190 N. Y. 215. 236 CouET OF Appeals Pbactice. [Eule 5 Third.* Applicants wJio are not graduates of a college, or university, subject to the limitations and requirements hereinafter, in this subdivision, expressed, or m,embers of the bar as above described, before entering upon the clerk- ship or attendance at a law school herein prescribed, shall have passed an examination conducted under the authority and in accordance with the ordinances and rules of the University of the State of New York in English, three years; mathem,atics, two years; Latin, two years; science, one year; history, two years; or in their substantial equiva- lents as defined by the rules of the university, and shall have filed a certificate of such fact, signed by the Commissioner of Education, ivith the Clerk of the Court of Appeals, whose duty it shall be to return to the person named therein a certified copy of the same, showing the date of such filing. The Regents may accept as the equivalent of and substitute for the examination in this rule prescribed, either, first, a certificate properly authenticated, of having successfully completed a full year's course of study in any college, or university ; second, a certificate properly authenticated, of having satisfactorily completed a four years' course of study in any institution registered by the Regents as main- taining a satisfactory academic standard; or, third, a Regents' diploma. All graduates of a college or university existing under the government or laws of any foreign country other than those where English is the language of the people and all applicants tvho apply for law students' certificates upon equivalents or substitutes, as above provided, all or any part of which are earned or issued in said foreign countries, shall pass the Regents' examination in second year English. The Regents' certificate above prescribed shall be deemed * In Court of Appeals, April 24, 1908. Ordered, That the following amend- ments to Rule V of the Rules regulating the admission of Attorneys and Counsellors at Law, be and the same hereby are adopted, in pursuance of the provisions of the Code of Civil Procedure, said amendments to take efiFect June 1, 1908. Rule 5] Admission op Attorneys. 237 to take effect as of the date of the completion of the Regents' examinations, as the same shall appear upon said certificate. (Amended April, 1908, to take effect June 1, 1908. See Rule IX.) Fourth. Satisfactory attendance upon and the successful completion of the prescribed course of instruction at a law school, the school year of which shall consist of not less than thirty-two school weeks, exclusive of vacation, in which not less than twelve hours of attendance upon law lectures or recitations of such prescribed course, to be given or con- ducted by regular members of the faculty, are required in each week, shall be deemed a year's attendance under this rule. The Court of Appeals, on June 10, 1907, decided that " while subd. 4 of Rule five prescribes a school year of not less than thirty-two school weeks and not less than twelve hours of attendance upon law lectures or recitations each week, 384 hours of school work during a year, even if dis- tributed over more than thirty-two school weeks, is a sub- stantial compliance with the rule. ' ' In computing the period of clerkship a vacation actually taken, not exceeding two months in each year, shall be allowed as a part of each year. It shall be the duty of attorneys with whom a clerkship shall be commenced, to file a certificate of the same in the office of the clerk of the Court of Appeals, which certificate shall, in each case, state the date of the beginning of the period of clerkship, and such period shall be deemed to com- mence at the time of such filing and shall be computed by the calendar year. In the case of a qualified law school in which the school year consists of less than an aggregate of 384 hours of attendance upon law lectures or recitations, but where the prescribed course for graduation is three years, a student who graduates therein upon the completion of the prescribed course shall be entitled to be credited ivith two years' attendance under this rule. The same period of time shaU not be duplicated for different purposes; except that a student attending a law school as herein provided, 238 Court of Appeals Practice. [Eule 5 and Who, during the vacations of such school, not exceeding three months in any one year, shall pursue his studies in the office of a practicing attorney, shall be allowed to count the time so occupied during such vacation or vacations as part of the clerkship in a law office specified in these rules. (Amended April, 1908.) Fifth. The justices for each Apijellate Division may adopt for their several and respective departments such additional special rules for ascertaining the moral and gen- eral fitness of applicants as to such justice may seem proper. (Added April 24, 1908; to take effect June 1, 1908.) Amendments to subdivisions third and fourth, and new subdivision fifth take effect on the first day of June, 1908, hut the amendment to subdivision third of Rule Five shall not apply to any student whose clerkship or attendance at a qualified law school has already begun, or shall have begun prior to June 1, 1908, as shown by the records of the Court of Appeals, or of any incorporated law school, or law school established in connection with any college or university. 1. Study of Law; changes in the Rule. Subdivision 1 of this rule contains some of the provisions of former Eule III, with the important modifications of permitting the entire periods of law study prescribed by the present rules (see Enile IV, subdivision second) to be passed either in attend- ance at a law school, or in serving an ofiice clerkship, or partly in one way and partly in the other, in place of the former require- ments of the service of an office clerkship for at least one year in all cases. (See former Rules III and VI.) 2. College graduation, and admission in another State or country. The provision of subdivision 2, that the course of law study required of a graduate of a college or university (which, by sub- division second of Eule IV, is two years) must have been pur- sued after gradiiation, is new in terms, but is merely the state- ment of the practical construction which has always been given to the provisions on the subject, under the rules heretofore in force. The provision that the period of law stvidy in this State Rule 5] Admission of Attoeneys. 239 prescribed for applicants who have been admitted in another State or country (which, by subdivision second of Rule IV is one year), must have been pursued after having remained an attorney in such other 'State or country for one year is new, being in con- formity with the provisions of present Eule IV on the subject. 3. Regents' examination and certificate. Changes in the rule. — Changes to be especially noted, effected by the amendments of 1908, are the elimination of the provision permitting the passing of the Regents' examinations and the filing of the certificate thereof within one year after entering upon a clerkship or attendance at a law school, leaving the single require- ment that such examination must be passed and the certificate thereof filed before entering upon a clerkship or attendance at a law school, and the changes in the subjects prescribed for the Regents' examination. On this subject the State Board of Law Examiners has adopted the following rule: Rule III. — In applying the provisions of Rules IV and V of the rules of the Court of Appeals " for the admission of attorneys and counselors at law," the board will require proof that the college or university of which an applicant claims to be a graduate, maintains a satisfactory standard in respect to the course of study completed by him. In case the college or university is registered' with the Board of Regents of the State of New York as maintaining such standard, the applicant must submit to the board, with his diploma or certificate of graduation, the certificate of the said Board of Regents to that effect, which will be accepted by this board as prima facie evidence of the fact. Such certificate need not be filed in cases where the Board of Regents, by a general certificate, has certified to this board that the said college or university maintains a satisfactory college standard leading to the degree with which the applicant graduated. In all other cases the applicant must submit with his diploma or certificate of graduation satisfactory proof of the course of study completed by him and of the character of the college or university of which he claims to be a graduate. Construction and application of the rule hy the Regents. — The practical construction given by the Regents to the provisions of the rule, governing their action in issuing law student certifi- cates, is set forth in " Instructions of the Board of Regents of the University to Law Students," page 267 ei seq., post. 240 CouET OF Appeals Peactice. [Rule 5 Former rules for Regents' examination. — The first provision for Regents' examination and certificate was made in 1882, in Rule II, adopted Maj 4, 1882, and which took effect July 1, 1882, in the following words: Rule II. — Before any person shall enter upon the clerkship, or sub- stituted course of study hereinafter provided, or within three months there- after, he shall, if not a graduate of a college or university, pass a regents' examination, conducted under the authority and in accordance with the rules and regulations of the Board of Regents of the University of the State of New York in arithmetic, grammar, geography, orthography, English and American history and English composition, and shall file a certificate of such fact signed by the secretary of the Board of Regents and countersigned by the principal or teacher conducting such examination, in the office of the clerk of the Court of Appeals, who shall, upon filing the same, return to the person named therein a certified copy of the same, showing the data of such filing; but this rule shall not apply to students whose clerkship or substituted course of study began before the adoption of these rules. This rule was amended March 19, 1891. The amended rule, which took effect April 13, 1891, and was readopted on the re- vision of the rules, October 28, 1892, remaining in force until the present revision, was as follows: Rule II. — Before any person shall enter upon the clerkship, or substituted course of study hereinafter provided, or in one year thereafter, he shall, if not a graduate of a college or university registered by the regents as maintaining a satisfactory standard, pass an examination conducted under the authority and in accordance with the ordinances and rules of the University of the State of New York, in English composition, first year Latin, arithmetic, geometry, English and United States history, and civics, or in their substantial equivalents defined by the rules of the University, and shall file a certificate of such fact, signed by the secretary of the university, with the clerk of the Court of Appeals, who shall return to the person named therein a certified copy of the same, showing the date of such filing. A law student whose clerkship or substituted course of study has already begun, as shown by the records of the Court of Appeals, or of any incor- porated law school in this State, or law school established in connection with any college or university within this State, may, at his option, file instead of the certificate required by this rule, that required by the rules of the Court of Appeals, adopted May 4, 1882. Ri^il© 5] Admission of Attorneys. 241 This rule was superseded by original subdivision 3d of Rule V, adopted December 20, 1906, and which took effect July 1, 1907, which subdivision was as follows: Third. — Applicants who are not graduates of a college or university or members of the bar as above prescribed, before entering upon the clerkship or attendajice at a, lavy school herein prescribed, or within one year there- after, shall have passed an examination conducted under the authority, and in accordance with the ordinances and rules of the university of the State of New York in second year English, first year Latin, arithmetic, algebra, geometry, United States and English historj', civics and economics, or in their substantial equivalents as defined by the rules of the university, and shall have filed a certificate of such fact signed by the commissioner of edu- cation, with the clerk of the Court of Appeals, whose duty it shall be to return to the person named therein a certified copy of the same showing the date of such filing. The regents may accept as the equivalent of and substi- tute for the examination in this rule prescribed either, first, «, certificate properly authenticated of having successfully completed a full year's course of study in any college or university; second, a certificate properly authen- ticated of having satisfactorily completed a, four years' course of study in any institution registered by the regents a^ maintaining a satisfactory academic standard; or, third, a regents' diploma. The regents' certificate above prescribed shall be deemed to take effect as of the date of the com- pletion of the regents' examination, as the same shall appear upon said certificate. Regents' law student examinations. — Examinations in the sub- jects prescribed by the rules are held by the Regents in all the academies and academic departments of union schools in the State, under regulations issued from their office in Albany, and special provision is, and will be made by the Regents for meeting the requirements of the rules. Effect of failure to comply with the rule. — If the Regents' examination is not passed before entering upon the clerkship or attendance at a law school, but is passed after that time, the stu- dent will lose, in the computation of his three years' period of law study, the time passed in studying law before passing the exami- nation, and will be required to continue his law study for three years from the date of completing his Regents' examination. That is, the period of law study under the rules cannot be com- puted as having begun before passing the Regents' examination, no matter how much earlier the student may, as matter of fact have commenced studying law. 16 242 Court of Appeals Peactice. [Rule 5 Filing regents' law student certificate. — As the requirement of the rule, that the acts prescribed shall have been done " before entering upon the clerkship or attendance at a law school herein prescribed," is intended to apply to the filing of the regents' certificate as well as to the passing of the regents' examination, the student should file his certificate with the clerk of the Court of Appeals as soon as he receives it from the regents. The clerk will thereupon, on receiving a request to that effect and on pay- ment of the fee of one dollar, make and send to the student a certified copy of the regents' certificate, showing the date of filing the original, in due form for presentation to the State Board of Law Examiners, as prescribed by subdivision 5, of Eule VI. If the regents' examination is not completed until near enter- ing upon the clerkship or attendance at a law school, the student should write to " Examination Department, University of the State of New York, Albany, N. Y.," stating his examination numher, and calling attention to the urgency of his case ; if this is done, the review of his examination papers will be expedited and a law student certificate will be sent to him as soon as pos- sible, in case he is found to have passed the examination success- fully. Amendment of 1896. — On and after January 1, 1S96, regents' certificates will be deemed to take effect as of the date of the com- pletion of the regents' examination, as that date shall appear upon the certificate, and not from the date of filing the same in the office of the clerk of the Court of Appeals. The requirement that before taking efl:ect, the certificates must have been filed in the office of the clerk of the Court of Appeals was not dispensed with ; in order to entitle an applicant to apply for examination, his regents' certificate must have been filed in the office of the clerk as heretofore, but if through neglect or in- advertence it was not filed at once upon its receipt from the regents, the necessity of procuring an order filing it nunc pro tunc as of the date of the completion of the examination is done away with, provided the date of the completion of the examina- tion appears on the certificate. It is understood that the state- ment of the date of the completion of a course of study accepted by the regents under these rules as an equivalent for the regents' examination, has the same force and effect as the statement of the date of the completion of a regents' examination. I^ule 5] Admission of Attorneys. 243 4. Vacations. Changes in the rule. — Subdivision 4 of the present rule is based upon the last paragraph of former Eule III. The length of the vacation allowed in each year of clerkship is reduced from three to two months, and it is required that in order to be computed, the vacation must have been " actually taken." This last provision is in accordance with what has always been the intention of the rules in reference to clerkship vacations, and removes any doubt as to the application of the provision on that subject. It was held by the General Term of the Third Depart- ment, under the former rules, that vacations not actually talien by students at law should not be allowed as part of the term of regular clerkship, and that the last three months' vacation would not be allowed to be taken by a student after his examination for admission, so as to permit him to deduct that period from his term of clerkship. Under the present rules time spent in a law office must be computed by the calendar year. An affidavit of ten months' service in an office and two months' vacation taken before or after the ten months, will not count as a year but only for time actually spent in the office. The attorney's affidavit of service of a regular clerkship in his office must show the actual service of such a clerkship, giving the date of the beginning and end thereof; the vacations taken must be within and betwe^'n those dates, that is, actually taken during the actual service of the clerkship. The new amendment as to the computation of the period of attendance upon a law school is to be noted. 5. Clerkship certificate. The rule. — Subdivision 5 of the present rule is substantially the same as former Eule V, except the words " which certificate shall, in each case, state the date of the beginning of the period of clerkship," which were introduced in 1894; the amendment of 1896 indicated by italics ; and the words " and shall be computed by the calendar year," which are taken from former Eule VIII. Requisites of the certificate. — It was formerly held essential that the certificate should state the commencement of a " regular clerkship " and the date thereof. A certificate which merely stated, for example, that " the study of law," or " a course of law 2-1:4 Court op Appeals Peactice. [Kule 5 reading," had been commenced, or that one had entered a law office as " a student at law," was insufficient. The General Term of the Supreme Court for the First Department, in March, 1894, gave the following reasons for rejecting, on an application for examination for admission, a certificate which had been filed in 1892, and which stated that the applicant had entered the office of a practicing attorney as " a student ■ at law : " The certificate was rejected by us because it did not seem to comply with the rules of the Court of Appeals. Throughout the whole of the rules, the serving of a clerkship Is spoken of : Rule II, " Before any person shall enter upon the clerkship," etc. In Rule III, clerkship is repeatedly spoken of; so in Rule IV; and in Rule V it is provided that a certificate of clerkship shall be filed. So in Rule VIII, the time of clerkship is spoken of; and there is but one place where " law student " is mentioned, and that for the first time in amendment of Rule II in March, 1891. Having in view the reason why the requirement of a practical clerkship was made of even graduates of law schools, it did not seem to us that the being a mere law student in an office was in any way a satisfaction of the requirement of the rule. The requirement of Rule V is certainly a very simple one, and it would seem that it could easily be complied with. We have, however, found that there exist some persons who make it a business to coach for examina- tions, and who give certificates of attendance as law students, in their offices, — the students not doing a particle of real clerical work, — and they have given certificates of the kind under consideration. Although the wording and requirements of the rules in the revision of 1892, referred to by the General Term, have been changed in some important respects by the present revision as e. g., in the application of the term " law study " to both attend- ance at a law school and clerkship in a law office, the State Board of Law Examiners gave the same construction to the present rule, in the following words: The certificate filed by the attorney under Rule V should state that the student has commenced a " clerkship." In our judgment the phrases " to have served a clerkship in a law office," and " to have studied law in an office,'' are not synonymous terms. The former is more comprehensive and includes the study of law as well as engaging in some of the practical work in the office, as generally understood. Such would be our construction of the rule. Recently, however, a form of certificate stating, among other requirements, that one has entered an office " as a regular law Hule 5] Admission o:f Attoenets. 245 clerk and student," has, bj approval and adoption of the court, superseded the earlier form which contained the statement that one had commenced " a regular clerkship." The certificate must also state where and when the student was born. For present form of certificate, see page 263. It is the practice of the clerk of the Court of Appeals, on re- ceiving a certificate which fails to follow the form now in force, to call attention to the defect and give an opportunity of substi- tuting the proper certificate. Filing certificate; commencement of clerlship. — It is the duty of the attorney to see to it that the certificate is made, and filed in the office of the clerk of the Court of Appeals, at once, on the commencement of a regular clerkship with him by a law student; many students have lost valuable time through the neglect of the attorney to do this. Copy of certificate. — On the certificate being filed, the clerk will furnish a certified copy thereof, together with a certificate of the fact and date of filing, in proper form for presentation to the State Board of Law Examiners, as prescribed by subdivision 3 of Rule VI, whenever requested, on receipt of the fee therefor, which is one dollar. Omission to file certificate at commencement of clerkship. — Where the attorney has failed to perform the duty imposed on him by the rule of filing the certificate at the time of the com- mencement of the clerkship an order may, on a proper showing, be applied for under Rule VII, filing the certificate nunc pro tunc as of the date when the clerkship actually commenced, which must, of course, agree with the date of the commencement of the clerkship stated in the certificate. For the practice on such ap- plication, and the showing required to obtain an order to file nunc pro tunc, see Rule VII. Change of attorneys during clerkship. — The duty of filing a preliminary clerkship certificate is imposed by the rule only upon the attorney with whom the clerkship is commenced ; therefore if, after this has been done, the student leaves the ofiice of such at- torney before he is entitled to apply for examination for admis- sion, and continues his clerkship with another attorney, or with different attorneys in succession, a new certificate need not be filed on any such change of attorneys; but proof of the continu- 246 CouET OF Appeals Practice. [Eule 5 ance and completion of the service of a regular clerkship must be made to the State Board of Law Examiners on application for examination, as prescribed by subdivision 3 of Eule VI, by affi- davits from the original attorney and each of the successive at- torneys showing the period of such clerkship served with each, respectively, and the vacations taken, if any. 6. Duplication of time; law school vacations. Application of the rule. — By force of the provisions in subdi- vision four of this rule, as to attendance on a law school, taken in connection with the provision that when a student attending a law school pursues his studies in the office of a practicing attor- ney during the vacations of the school, not exceeding three months in any one year, he shall be allowed to count the time so occu- pied during such vacation or vacations as part of an office clerk- ship, the student may take a vacation from both school and office, and have his year's work computed as covering a year and three months of the prescribed period of law study. This is the extent of duplication of time allowed. The rule against duplication of time for different purposes does not prohibit a clerk in a law office from attending a law school out of office hours, nor does it prohibit an attendant on a law school from acting as clerk in a law office out of school hours, but it does prohibit computing the same time so as to apply it upon both clerkship and attendance at law school, in making out the term of law study .prescribed by the rules, except as regards three months of the law school vacation in each cal- endar year. For example, to put the application of the rule in another form, if in a given calendar year, a law student serves as clerk in a law office throughout the year, after a certificate of the commencement of his clerkship has been duly filed, and also attends a law school, without interfering with the service of his clerkship, the year so employed, although it might be computed either as clerkship or as attendance on law school, cannot be com- puted both as a year's clerkship and also as a year's attendance at law school, so as to make up together two years of law study, under the rules, but it can be computed as a year's attendance on a law school and three months' clerkship, making in all a year and three months of law study, within the meaning of the Eiile 6] Admission of Attorneys. 247 rules, which, as before stated, is the utmost duplication of time allowed. With the above exception, as to three months in any one year, service of clerkship and attendance at law school, where law is studied partly in one of these modes and partly in the other, must, in order to be computed in making up the prescribed period of law study, be successive and not contemporaneous; but the order in which the two modes of law study may be pursued is immaterial. RULE VI. Proof of Compliance with Preliminary Requirements. The State Board of Law Examiners, before admitting an applicant to an examination, shall require proof that the preliminary conditions prescribed by these rules have been fulfilled ; which proof shall be made as follows, viz. : First. That the applicant is a college graduate, by the production of his diploma or certificate of graduation under the seal of the college. Second. That he has been admitted to the bar of another State or country, by the production of his license or certifi- cate executed by the proper authorities. Third. That he has served a regular clerkship, in the office of a practicing attorney of the Supreme Court [in] this State, after the age of eighteen years, by producing and filing with the board a certified copy of the attorney's cer- tificate as filed in the office of the clerk of the Court of Appeals, and producing and filing an affidavit of the attor- ney or attorneys with whom such clerkship was served, showing the actual service of such clerkship, the continu- ance and end thereof, and that not more than two months ' vacation was taken in any one year. [Both of said affidavits must be to the effect that during the entire period of such clerkship, except during the stated vacation time, the appli- cant was actually employed by said attorney as a regular law clerk and student in his law office, and, under his direc- 248 CouET OF Appeals Peactice. [Eule 6 tion and advice, engaged in the practical work of the office during the usual business hours of the day.] Fourth. The time of study allowed in a law school must be proved by the certificate of the teacher or president of the faculty under whose instructions the person has studied, under the seal of the school, if such there be, in addition to the affidavit of the applicant, which must also state the age at which the applicant began his attendance at such law school. [Said certificate and affidavit must also state the facts required by subdivision four of Eule V], which proofs must be satisfactory to the Board of Examiners. Fifth. That the applicant has passed the regents' exam- ination or its equivalent, must be proved by the production of a certified copy of the regents* certificate filed in the office of the clerk of the Court of Appeals, as hereinbefore provided. Sixth. When it satisfactorily appears that any diploma, affidavit or certificate required to be produced has been lost or destroyed, without the fault of the applicant, or has been unjustly refused or withheld, or, by the death or absence of the person or officer who should have made it cannot be obtained, the Board of Law Examiners may accept such other proof of the requisite facts as they shall deem sufficient. Seventh. A law student whose clerkship or attendance at a law school has already begun as shown by the records of the Court of Appeals, or of any incorporated law school, or law school established in connection with any college or university, may, at his option, file or produce, instead of the proofs required by these rules, those required by the rules of the Court of Appeals adopted December 2, 1895.* * It is sufficient for a law student whose attendance at a law school had already begun when the present rules went into effect, to show full com- pliance with the rules adopted December 2, 1895. without showing compliance with the rules which went into effect July 1, 1907, but the proofs submitted, as to time of study, etc., must be satisfactory to the State Board of Law Examiners. Matter of New Torh Law School' (1907), 190 N. Y. 215. Rule 6] ADMiissioN of Attorneys. 249 Changes in the Rule. The differences between the present and former rules, in addi- tion to those arising from the amendments of 1896, commented on below are as follows: In subdivision 1 of this- rule, the words " or certificate of gradu- ation are new;* the provision for publication of a diploma was m subdivision 3 of former Eule IV. Subdivision 2 is new. The first clause of subdivision 3 corresponds with the last clause of former Eule V, with the addition, however, of the re- quirement of filing, as well as producing, a certified copy of the certificate of commencement of clerkship; the second clause is new, being an amplification, by the addition of specific require- ments, of the indefinite provision of subdivision 4 of former Rule IV, that " the clerkship may be proved by the certificate of the attorney with whom the same was served." iSubdivision 4 is the same as the last sentence of subdivision 4 of former Rule IV, with the exception of the substitution of " in a law school " for " as a substitute for any part of said clerk- ship," and the substitution of " board of examiners " for " court." Subdivision 5 is the same as the corresponding provision of subdivision 3 of former Rule IV, except the words " or its equiva- lent," after " regents' examination," which are new. Subdivision 6 is substantially new, being an amplification of provisions found in subdivisions 3 and 4 of former Rule IV. Subdivision Y corresponds to the saving clause at the end of the former Rule II (which see on page 240), but confines its per- mission to a compliance with the rules of 1895, and no longer permits recourse to the rules of 1892. This subdivision retains the form in which it was adopted in 1894, except that it origi- nally used the word " certificates " where the word " proofs," substituted by amendment in 1895, now appears. In the clause limiting its operation to " a law student whose clerkship or at- tendance at a law school has already begun," the words " has already begun " were in 1897 construed as referring to and speaking from the date when they originally went into effect in * As to the meaning of the word " new," see note at foot of page 216. 250 CouET or Appeals Peactice. [Eule 6 this subdivision. This was decided in Matter of Warde (1897), 154 N. Y. 342, which case enunciates the following conclusions: (1.) Amendments to the rules. — The amendments made December 2, 1895, 1(1 the Rules for the admission of attorneys, which retained unchanged the following italicized clauses in subdivision 7 of Rule VI, adopted October 22, 1894: A law student whose clerkship or attendance at a law school has already begun may, at his option, file or produce, instead of the certificates required by these rules, those required by the rules of the Court of Appeals, adopted October 28, 1892, did not have the effect of making the words " has already begun " refer to the date of the taking eflect of the amendments, namely January 1, 1896, but left them continuing to speak as of the date ■when they originally went into effect, namely, January 1, 1895. (2) Rules of 1892. — The privilege of proceeding under the rules of 1892 does not apply to any law student whose clerkship or attendance at a law school commenced after the 1st day of January, 1895, but all such students must conform to the later rules. (3) Rcycuts' certificate under Rules of 1892. — A law student where cl-jrk ship or attendance at a law school commenced after the 1st day of January, 1895, cannot be admitted to examination for admission, upon producing a regents' certificate under the rules of 1892. Amendments of 1896. The amendments to this rule, which went into effect on Janu- ary 1, 1896, do not add additional requirements, but ask for greater certainty in the proofs demanded by the rule. Hereafter, all certificates of graduation annexed to the appli- cant's papers, as proof of his being a graduate of a college or university, must be attested by the seal of the college — a mere written declaration purporting to be signed by an oiBcer thereof will be insufficient; and the same rule applies to certificates of law school attendance, which must also be under the seal of the school, if such there be. Since January 1, 1896, the attorney with whom the applicant has served a regular clerkship must make affidavit to the fact of the actual service by the applicant of a regular clerkship in his law office after the age of eighteen years, showing the continu- ance and end thereof and that not more than two months' vaca- tion was taken in any one year. Certificates of these fact^ will not be accepted. An applicant who claims time by attendance at a law school must now state the age at which he began his attendance thereat, in order to show that he did not begin such attendance before he was eighteen years of age. Kule 6] Admission of Attorneys. 251 Submission of proofs to the State Board of Law Examiners. The papers required by this rule to be produced to or filed with the State Board of Law Examiners, together with the applicant's own affidavit under Rule IV, are required by the board to be delivered to its secretary at least fifteen days before the day ap- pointed for the examination. The address of the secretary of the board is given under Eule VIII, page 255. The rules adopted by the State Board of Law Examiners on the subject are to be found on page 287. It should be borne in mind that the attorney's certificate of the applicant's good moral character, required by Rule III, is to be produced to and filed with the Appellate Division of the Supreme Court, and not with the Board of Law Examiners. Papers required from law students. The following is a recapitulation of all the papers required by the rules to be produced or filed by law students, or on their behalf, from the commencement of law study to application for admission. To he filed in the office of the clerk of the Court of Appeals. (1) Regents' law student certificate. (To be filed before enter- ing upon clerkship or attendance at a law school. Rule V, subd. 3.) (2) Attorney's certificate of commencement of clerkship. (To be filed on entering upon clerkship. Rule V, subd. 4.) To he submitted to the State Board of Law Examiners, on ap- plying for examination: (3) College diploma or certificate of graduation (Rule VI, subd. 1), with (4) regents' certificate or other proof that the institution maintains a satisfactory standard (Rule III of State Board of Law Examiners, page 287) ; or (5) certified copy of regents' law student certificate (Rule VI, subd. 5) ; or (6) license or certificate of admission in another State or country (Rule VI, subd. 2; and see Examiners' Rule V, page 288). (7) Certified copy of attorney's certificate of commencement of clerkship and (8) attorney's affidavit of service of clerkship (Rule VI, svibd. 3) ; and [or] (9) certificate of attendance at law school and (10) applicant's own affidavit of attendance at law school (Rule VI, subd. 4). 252 CouBT OF Appeals Peaotiob. [Eule 7 (11) Applicant's own affidavit of citizenship, age, residence, etc. (Eule IV and Examiners' Eule I.) To he submitted to the Appellate Division of the Supreme Court, on applying for admission and license. (12) Certificate of State Board of Law Examiners, of passing examination (Eule III). (13) Affidavits of good moral character (Eule III). Unearned examination. — In Matter of Edwards (1897), 152 N. Y. 627, an application by a law student for an order per- mitting him to be examined for admission to the bar, before the expiration of his term of service as law student, was denied. RULE VII. Filing Certificates Nunc Pro Tunc; Certain Regents' Certificates Validated. When the filing of a certificate, as required by these rules, has been omitted by excusable mistake, or without fault, the court may order such filing as of the proper date. All certificates heretofore issued to law students by the Board of Eegents and founded upon equivalents instead of an actual examination, are validated and made eifectual, and may be accepted as sufficient by the Board of Examiners. The Eule. This rule was introduced by the revision of 1894, but its pro- visions are, in effect, the statement of what has always been the practice in granting relief in cases of excusable mistake or over- sight in not complying with the requirements for filing certifi- cates, and in accepting regents' certificates issued upon substitutes for an actual regents' examination, although not expressly pro- vided for by the rules before that revision. The certificates in reference to which relief, under this rule, is of the most importance are regents' certificates which fail to state the date of the com- pletion of the regents' examination, and clerkship certificates. If regents' certificates on which appear the date of the completion of the regents'' examination (Eule V, subd. 3), are filed at any time prior to the application for examination for admission, they will be deemed to take effect as of the date of the completion of the regents' examination and need not be filed nunc pro tunc. ^iile '^] Admission of Attorneys. 253 Filing regents' certificate nunc pro tunc. Regents' certificates are no longer filed nunc pro tunc; when filed, they are deemed to take effect as of the date of the regular examination as the same shall appear upon said certificate (Eule V; subd. 3). Filing clerkship certificate nunc pro tunc. When the attorney with whom a clerkship has been commenced has failed to perform the duty imposed upon him by subdivision 5 of Eule V, of filing the prescribed certificate of that fact at the time of the commencement of the clerkship, an application may be made under this rule, for an order filing such certificate nunc pro tunc as of the date of the beginning of the period of clerkship as stated in the certificate. To obtain such an order, the attorney with whom the clerkship was commenced, must make and send or present to the clerk of the Court of Appeals, together with his certificate, or a reference thereto, if it has already been filed, an affidavit stating that he was, at the time of the beginning of the clerkship stated in the certificate, a practicing attorney of the Supreme Court of the State of New York; that the student com- menced a regular clerkship in his law office on the date mentioned in the certificate (giving it) ; that the student was at that time over eighteen years of age, and that he had passed the prescribed regents' examination, or completed a course of study accepted as a substitute therefor, and filed a regents' law-student certificate, or, that he is exempt from so doing by reason of having been gradu- ated at a college or university, or having been admitted and having remained as an attorney in another State or country for one year, before the beginning of the clerkship. The affidavit should also state the facts which are relied on to constitute an excuse for not filing the certificate at the time the clerkship commenced. If the affidavit is sufficient, and it appears that the student had pased a regents' examination or completed a course of study ac- cepted as a substitute therefor, before entering upon the clerk- ship, and had filed a regents' certificate, or is exempt from so doing, an order will be granted and entered, and the clerkship certificate will be deemed filed nunc pro tunc, accordingly, as of the date when the clerkship is stated to have actually commenced ; but no order for filing nunc pro tunc will be granted, where the 254 Court of Appeals Practice. [Rule 8 effect would be to dispense with a regents' examination and cer- tificate, or to give the student the advantage of an earlier rule prescribing the subjects of regents' examination than that to which he otherwise would be subject. See Matter of Michael (1897), 154 N. Y. 762. A certified copy of the order, required for presentation to the State Board of Law Examiners on application for examination, will be furnished by the clerk when requested, on receipt of the fee therefor, which is one dollar. RULE VIII. state Board of Law Examiners. The State Board of Law Examiners shall be paid as com- pensation, each th& sum of two thousand dollars per year, and in addition such further sum as the court may direct, and an annual sum not exceeding two thousand dollars per year shall be allowed for necessary disbursements of the board. Every applicant for examination shall pay to the examiners a fee of fifteen* dollars, which shall be applied upon the compensation and allowance above provided, and any surplus thereafter remaining shall be held by the treas- urer of fhe State Board of Law Examiners and deposited in some bank, in good standing, in the city of Albany, to his credit and subject to his draft as such treasurer when approved by the Chief Judge. The examinations held by such State Board of Examiners may be conducted by oral or written questions and answers, or partly oral and partly written, but shall be as nearly uniform in the knowledge and capacity which they shall require, as is reasonably pos- sible. An applicant who has failed to pass one examina- tion cannot again be examined, until at least three months after such failure. State Board of Law Examiners. This rule is new, being in compliance with and furtherance of the requirements of section 56 of the Code of Civil Procedure, *" Fifteen" substituted for "ten," November 30, 1909. Kule 8] Admission of Attoekeys. 255 as amended by chapter 760 of the Laws of 1894. (See above, under Eule I.) This act, which created the State Board of Law Examiners, provided that it should go into effect January 1, 1895, but that the examiners might be appointed and the rules for ex- amination adopted immediately. The act was approved by the Governor May 23, 1894, and on October 31, 1894, the Court of Appeals appointed members of the State Board of Law Examiners. The board now consists of William P. Goodelle, of Syracuse; Eranklin M. Danaher, of Albany, and Frank Sullivan Smith, of New York. Mr. Goodelle is president of the board, and Mr. Danaher secretary and treasurer. The ofEce of the secretary and treasurer, to whom the proofs required by Eules IV and VI, and the fee prescribed by this rule, should be sent by applicants for examination fifteen days before the date appointed for their ex- amination, is Rooms 41 and 42 Bensen Building, Albany. See Eules of the State Board of Law Examiners, page 286. Scope of the examination. Until other or additional subjects are prescribed by the State Board of Law Examiners, applicants should be prepared for examination upon the topics prescribed by Eule I of the General Eules of Practice of this State, prior to the revision thereof of 1896, which revision leaves the scope and character of the exami- nations entirely in the discretion of the Board. Former Eule I required the applicant to sustain a satisfactory examination upon the law of pleadings, practice as regulated by the Code of Civil Procedure and by the General Eules of Practice, the law of real and personal property, contracts, partnership, negotiable paper, principal and agent, principal and surety, insurances, executors and administrators, bailments, corporations, personal rights, do- mestic relations, wills, equity, jurisprudence, criminal law and the law of evidence. The education and course of study of candidates for admission to the bar are discussed, and the qualifications deemed essential under the circumstances existing when the only condition or re- straint imposed by law upon admission to practice was the pro- vision of the 'State Constitution of 1846 (art. 6, § 8), that those who possessed " the requisite qualifications of learning and abil- ity " should be entitled to admission, are stated in an interesting report of an examining committee to the General Term of the 256 GoTJRT OF Appeals Peacticb. [Rule 9 Supreme Court, in 1856, reported as Matter of Pratt, 13 How. Pr. 1. See, also, Eule VI of the State Board of Law Examiners, page 288. RULE IX. Time of Taking Effect. [These Rules shall take effect on July 1, 1907.] These amendments* shall take effect on the first day of June, 1908, iut the amendment to subdivision third of Bute V shall root apply to any student whose clerkship or attendance at a qualified law school has already begun, or shall have begun prior to June 1, 1908, as shown by the records of the Court of Appeals, or of any incorporated law school, or law school established in connection with any college or university. Rule IX of 1895, which prescribed times and places for holding examinations, was dropped by the revision of 1906, but the provision thereof permitting an applicant to be ex- amined in any department, whether a resident therein or not, is preserved by Rule II of the State Board of Law Examiners (page 286). Prior rules restricted both exami- nation and admission thereon to the judicial department of which the applicant was at the time a resident. An excep- tion to this restriction prevailed up to 1882, in the case of graduates of certain law schools in this State, who, by force of statutes, the repeal of which did not take effect until that year, were entitled to admission without examination by the court, on production of their diplomas. Matter of Burchard (1882), 27 Hun, 429. This exception ceased, how- ever, with the repeal of the statutes referred to, and after 1882 graduates of law schools were subject, in common with other applicants for admission, to the requirement of making their application for admission, to the Supreme Court in the department in which they resided. The distinction in respect to the department of examina- tion and that of admission is to be noted. While the statute * Of April 24, 1908, printed in italics. Kule 9] Admission of Attoeneys. 257 impliedly and tlie rule expressly permits any applicant to be examined by tbe State Board of Law Examiners in any department, whether a resident therein or not, admission to practice is, by force of the provisions of section 56 of the Code (section 88 of the Judiciary Law), restricted to the Appellate Division of the Supreme Court of the depart- ment in which the candidate resides. Rule of the Supreme Couet. Rule 1 of the General Rules of Practice as amended April 1, 1910, in effect September 1, 1910, is as follows: Application for admission as attorneys. Within ten days after the iirst day of January in each year, the Appellate Division in each department shall appoint a committee on character and fitness of not less than three for the department, or may appoint a com- mittee for each judicial district -within the department, to whom shall be referred all applications for admission to practice as attorney and counselor- at-law, such- committee to continue in office until their successors are appointed. To the respective committees shall be referred all applications for admission to practice, either upon the certificate of the State Board of Law Examiners, or upon motion under Rule 2 of the rules of the C!ourt of Appeals for the admission of attorneys and counselors-at-law. The com- mittee shall require the attendance before it, or a member thereof, of each applicant, ^¥ith the affidavit of at least two practicing attorneys acquainted with such applicant, residing in the judicial district in which the applicant resides, that he is of such character and general fitness as justifies admission to practice, and the affidavit must set forth in detail the facts upon which the afliant's knowledge of the applicant is based, and it shall be the duty of the committee to examine each applicant, and the committee must be satisfied from such examination, and other evidence that the applicant shall produce, that the applicant has such qualifications as to character and gen- eral fitness as in the opinion of the com m ittee justify his admission to practice, and no person shall be admitted to practice except upon the pro- duction of a certificate from the committee to that effect, unless the court otherwise orders. No applicant shall be entitled to receive such a certificate who is not able to speak and to write the English language intelligently, nor until he affirmatively establishes to the satisfaction of ihe committee that he pos- sesses such a character as justifies his admission to the bar and qualifies him to perform the duties of an attorney and counselor-at-Iaw. An applicant for admission to practice as an attorney and counselor-at- law on motion, under the provisions of Rule 2 of the Rules of the Court of Appeals for the admission of attorneys and counselors-at-law, must present 17 258 CouET OF Appeals Practice. [Eule 9 to the court proof that he has been admitted to practice as an attorney and counsolor-at-law in the highest court in another state, or in a country whose jurisprudence is based upou the principles of the common law of England; a, certificate, executed by the proper authorities, that he has been duly admitted to practice in such state or country; that he has actually remained in said state or country, and practiced in such court as attorney and counselor-at-law for at least three years; a certificate from a judge of such court that he has been duly admitted to practice and has actually continuously practiced as an attorney and counselor-at-law for a period of at least three years after he has been admitted, specifying the name of the place or places in which he had so practiced and that he has a good character as such attorney. Such certificate must be duly certified by the clerk of the court of which the judge is a member, and the seal of the court must be attached thereto. He must also prove that he is a citizen of the United States and has been an actual resident of the State of New York, or of an adjoining state, for at least six months prior to the making of the applica- tion, giving the place of his residence by street and number, if such there be, and the length of time he has been such resident. He shall also submit the affidavits of two persons w)io are residents of the judicial district in which he resides, one of whom must be an attorney and counselor-at-law, that he is of such character and general fitness as justifies admission to practice, and the affidavit must set forth in detail the facts upon which the affiant's knowledge of the applicant is based. In all cases the applicant must appear in person before the court, on the motion for his admission, and also before the committee on character and fitness for the district in which the applica- tion is made. Wlien the applicant resides in an adjoining State, and a motion is made to admit him to practice in this State without actual resi- dence herein, in addition to the foregoing facts, the applicant m.ust prove to the satisfaction of the court that he has opened and maintains an office in this State for the transaction of law business therein. In all cases the applicant for admission must file with the clerk of the Appellate Division of the proper department the papers required for his admission as hereinbefore specified prior to or at the time of the motion for admission to practice. Registration of Attoeneys. The system of registration of attorneys was created by chapter 1(15 of the Laws of 1898 and amended by chapter 225 of the Laws of 1899 and chapter 154 of the Laws of 1906. This legislation is now embodied in the Consolidated Laws, as follows : Judiciary Law. § 468. Every person who is hereafter duly licensed and admitted to prac- tice as an attorney and counselor-at-law in the courts of record of this State by an Appellate Division of the Supreme Court, shall svibscribe and take and file an oath or affirmation which must be substantially in the following Kule 9] Admission of Attorneys. 259 form, the blanlcs b«ino' properly filled before lie begins or is entitled to begin to practice for anotlier as an attorney and counselor- at- law in the courts of this State or in any court in the county of New York or in the county of Kings : STATE OF NEW YORK, COUNTT, I, , being duly sworn (or aflarmed), do depose and say that I am a. natural born citizen of the United States (if naturalized, state when and where) and now reside at (or, if a resident of an adjoining State and admitted to practice in the courts of record of this State and whose office for the transaction of law business is within this State, state the fact). That I was duly and regularly licensed and admitted to practice as an at- torney-at-law or as an attorney and counselor-at-law in the courts of record of this State at the term 18. . of the General Term (or Appellate Division) of the Supreme Court (or other court as the case may be) held at and that I took the constitutional oath of office Subscribed and sworn to before me, this day of , 189. .. which oath or affirmation shall be filed in the office of the clerk of the Court of Appeals by the person making the same, provided, nevertheless, that such affidavit or affirmation may state that the deponent or affirmant believes that he took the constitutional oath of office in lieu of stating unqualifiedly that he did so, where the affidavit or affirmation states, or in substance shows, the deponent's or affirmant's lack of positive or certain recollection of having taken such oath, or shows other substantial reason for thus qualifying the affidavit or affirmation on that subject. If any attorney or counselor- at-law or solicitor in chancery or attorney of or in the Supreme Court on the first Monday of July, eighteen hundred and forty-seven, who was entitled to file the said oath or affirmation under the provisions of Laws of eighteen hun- dred and ninety-eight, chapter one hundred sixty-five, as amended, before July first, eighteen hundred and ninety-nine, has failed to do so, the Special Term of the Supreme Court of the judicial district where such attorney-at- law or attorney or counselor-at-law resides, may, upon proof by affidavit showing reasonable grounds therefor, grant an order permitting the appli- cant to make and file the oath or affirmation required herein, with the same effect as if the same had been made and filed within the time stated, and relieving him from penalties and prosecutions by reason of failure to make affirmation hereinbefore provided shall pay to the said clerk at the time of and file such oath or affirmation within the time required. Every person filing with the clerk of the Court of Appeals the oath or affirmation hereinbefore provided shall pay to the said clerk at the time of guch filing the sum of twenty-five cents to defray the necessary disbursements incurred by him in carrying out the provisions of this article. 260 CouET OF Appeals Practice. [Rule 9 A person who practices any fraud or deceit or knowingly makes any false statement in the oath or affirmation in and by this section required to be made and filed is guilty of a felony. § 469. It shall be the duty of the clerk of the Court of Appeals to file in his office the said oaths or affirmations aforesaid, and to compile the state- ments contained therein, and to enter therefrom in a bound book or volume to be kept by him for that purpose, which shall be known and designated as and is hereby made the " official register of attorneys und counselors-at-law in the State of New York," in the alphabetical order of the first letter of their surnames, the names and residences and the title of the court and the time and place where admitted, and the date the oath or affirmation aforesaid was filed, of all persons who have filed in his said office the oath or affirmation as aforesaid, which said " official register of attorneys and counsellors-at- law in the State of New York," is hereby declared to be a public record and presumptive evidence that the individuals therein named are duly registered to practice at attorneys and counsellors-at:law in the courts of record of this State or in any court in the counties of New York and Kings. It shall be unlawful for any person to practice or appear as an attorney- at-law or as attorney and counselor-at-law for another in a court of record in this State or in any court in the county of New York or in the county of Kings, or to make it a. business to practice as an attorney-at-law or as an attorney and counselor-at-law for another in any of said courts, or to hold himself out to the public as being entitled to practice law as aforesaid, or in any other manner, or to assume to be an attorney or counselor-at-law, or to assume, use, or advertise the title of lawyer, or attorney and coimselor-at- law, or attorney-at-law, or counselor-at-law, or attorney, or counselor, or attorney and counselor, or equivalent terms in any language, in such manner as to convey the impression that he is a, legal practitioner of law or in any manner to advertise that he either alone or together with any other persons or person, has, owns, conducts or maintains a law office or law and collection office, or office of any kind for the practice of law, without having first been duly and regularly licensed and admitted to practice law in the courts of record of this State, or, in case of persons licensed and admitted prior to July first, eighteen hundred and forty-seven, without having first been duly and regularly licensed and admitted to practice as attorney of or in the then Supreme Court or as solicitor in chancery or of the court of chancery, and without having taken the constitutional oath and without having sub- scribed and taken the oath or affirmation required by section foui- hundred and sixty-eight of the Judiciary Law and filed the same in the office of the Court of Appeals as required by said section. Any person violating the provisions of this section is guilty of a misdemeanor and it shall be the duty of the district attorneys to enforce the provisions of this section and to prosecute all violations thereof. The Oourt of Appeals has no power on original motion, to order the filing mmc pro tunc of an attorney's oath for the purpose of ■^"^e 9] Adjiission of Attoknets. 261 registration under chapter 165 of the Laws of 1898. The duty imposed upon the clerk of that court under this act is independent of the court, and in that regard he should he treated as an inde- pendent puhlic ofRccr. Matter of Caruthers (1899), 158 'N. Y. 131. Certificate of registration — fees. — The clerk will, on request, furnish a certificate of registration; the fee for which is fifty cents. The fee for filing the oath or affirmation is, as provided by section 45S of the Law, twenty-five cents. Additional restrictions as to the practice of law. The Judiciary Law provides as follows : Attorney who is judge's partner or clerk prohibited from practicing before him or in his court. § 471. The law partner or cleric of a judge shall ^lot practice before liim, as attorney or coimselor in any cause, or be employed in any cause which originated before him. A law partner of, or person connected in law busi- ness with a judge, shall not practice or act as an attorney or counselor, in a court, of which the judge is, or is entitled to act as a member, or in a. cause originating in that court; except where the latter is a member of a court, ex officio, and does not officiate or take part, as a member of that coui-t, in any of the proceedings therein. (From Code of Civil Procedure, §§ 49, .50.) Attorney who is surrogate's fatter or son prohibited from practicing before him. § 472. A surrogate's father or son shall not practice or be employed as attorney or counsel, in any case, in which his partner or clerk is prohibited by law from so practicing, or being employed. (From Code of Civil Pro- cedure, § 2.529.) Sheriffs, constables, coroners, criers, and attendants prohibited from practicing during term of office. § 473. A sheriff, under sheriff, deputy sheriff, .sheriff's clerk, constable, coroner, crier, or attendant of a court, shall not during his continuance in ofEce, practice as an attorney or counselor in any court. (From Code of Civil Procedure, § 62.) Compensation of attorney or counselor. § 474. The compensation of an attorney or counselor for his services is governed by agreement, express or implied, which is not restrained by law. (Prom Code of Civil Procedure, § 66.) 262 Court of Appeals PKAfTicE. [Rule 9 Attorney's lien in action or special proceeding. § 475. From the commencement of an action or special proceeding, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action, claim or counterclaim, which attaches to a verdict, report, decision, judgment or final order in his client's favor, and the proceeds thereof in whosesoever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment or final order. The court upon the petition of the client or attorney may determine and enforce the lien. (P'roni Code of Civil Procedure, § 66. The Code of Civil Procedure provides as follows : Service of paper upon attorney residing in adjoining State. § 60. Service of a paper, which might be made upon him at his residence, if he was a, resident of the State, may be made upon a person regularly ad- mitted to practice as an attorney and counselor, in the courts of record of this State, whose office for tbe transaction of law business is within the State but who resides in an adjoining State, by depositing the paper in a post office in the city or town where his office is located properly enclosed in a post paid wrapper, directed to him at his office. A service thus made is equivalent to personal service upon liim. Death or disability of attorney; proceedings thereupon. § 65. If an attorney dies, is removed or suspended, or otherwise becomes disabled to act, at any time before judgment in an action, no further pro- ceedings shall be taken in the action against the party for whom he appeared, until thirty days after notice to appoint another attorney has been given to that party, either personally, or in such other manner as the court directs. FORMS. 1. Certificate of Commencement of Clerkship. I, the undersigned, a practicing attorney of the Supreme Court of the State of New York, do hereby certify that , who is upwards of eighteen years of age, having been born at , on the day of , has this day entered my office at , N. Y., as a regular law clerk and student under the rules of the Court of Appeals for the admission of Attorneys and Counselors-at-law. Dated Attorney-at-Law. 2. Applicant's Affidavit. Rules IV and VI. In the Appellate Division of the Supreme Court of the State of New York, Judicial Department. In the Matter of the Application of for Admission to the Bar. City and County of , 'i State of New York, i **■ ' , being duly sworn, deposes and says: First. That he is the applicant above-named and the person mentioned in the annexed preliminary papers. That he is a citizen of the United States and of the State of New York. That he is twenty-one years of age and upwards, to wit: he is years old. That he is a, resident of this State, and has not been examined for admission to practice and been refused admission and license within three months immediately preceding the time of making this application for admission to the bar. That he has resided for the past six months at No. , street, in the city of , New York, in the Judicial Department of said State. Second. That he has studied law in the manner and according to the con- ditions prescribed by the rules of the Court of Appeals for the admission of attorneys and counselors-at-law, as will more fully appear by the annexed papers. [263] 264 Court of Appeals Pkactice. [No. 2 Third. Deponent further alleges that he is a graduate of college (or university), having graduated therefrom on the day of , 18 , with the degree of , as will more fully appear by deponent's certificate of graduation, under the seal of said college (or university), hereto annexed, (or deponent's diploma presented herewith), marked "A." That said college (or university) is registered with the Board of Regents of the State of New York as maintaining a satisfactory standard in respect to the course of study completed by deponent, as will more fully appear by the certificate of the Board of Regents to that effect hereto annexed, marked " B." Fourth. Deponent further alleges, that he completed and passed the regents' examination, as required by tlie rules of the Court of Appeals, on day of , 18 , on which a Regents' Law Student Certificate was duly issued to him; that deponent filed a certificate of such fact, signed by the Secretary of the University, with the clerk of the Court of Appeals on the day of , 18 , as will more fully appear by the annexed certified copy of the regents' certificate filed in the office of the clerk of the Court of Appeals, showing the date of such filing, marked "C." (Or, Deponent further alleges, that on the day of , 18 , the Board of Regents of the State of New York issued to deponent a Regents Law Student Certificate, as an equivalent of and substitute for the regents' examination prescribed by the rules of the Court of Appeals, which said certificate deponent filed in the office of the clerk of the Court of Appeals on the day of , 18 , as will more fully appear by the annexed certified copy of the same, showing the date of filing, hereto annexed and marked "D.") Fifth. Deponent further alleges that he served a regular clerkship in the law office of a practicing attorney of the Supreme Court in this State, after the age of eighteen years, to wit: in the law office of , at , from the day of , IS , to the day of ,18 , as will more fully appear by the annexed certified copy of the attorney's certificate of commencement of the service of such regular clerkship and proof of filing thereof in the office of the clerk of the Court of Appeals, marked " E," and the annexed affidavit of , the attorney with whom such regular clerkship was served, marked " F." That deponent did not take more than two months' vacation in any one year during the service of such clerkship; the vacations taken by deponent being as follows, viz.: from to , as also appears by the affidavit of said , hereto annexed. Sixth. Deponent further alleges that he attended the ha,vr School, situated at ' , during a school yeai of not less than eight months, to wit, from , 18 , to , IS , and that he was of the age of years when ho began his attendance thereon. The fact of said attendance is proven by the certificate of the teacher (or president of the faculty) of the said Law School, hereto annexed, under the seal of. said Law School (if such there be), and marked " G." No. 2] FoEMs. 265 Seventh. Deponent further alleges that on the day of , 18 , he was admitted as an attorney in the Court of the State of , that being the highest court of original jurisdiction in said State, and that he remained in said State as a practicing attorney for at least one year, to wit, from the day of , 18 , to the day as , 18 , as will more fully appear from the annexed license or certificate of admission to practice, executed by the proper authori- ties, marked " H," and by the annexed authenticated eertiiicate, marked " 1,'' of the Hon. , a Judge of said Court (or of the Hon. County Judge of county, in said State), as required by Rule V of the Rules of the State Board of Law Examiners. Eighth. Deponent further alleges that his certificate of commencement of regular clerkship in the office of a practicing attorney of the Supreme Court in this State, after the age of eighteen years (or his Regents' Law Student Certificate), was filed nunc pro tunc with the clerk of the Court of Appeals as of the date of , 18 , in pursuance of an order of the Court of Appeals, a certified copy of Avhich order is hereto annexed, marked "J." Sworn to before me, this 1 o- j. i <. ^■ i L Signature of Applicant. day of ,18 J Note. — The above general form covers every possible condition arising under the rules for admission to the bar, except (1; under subd. 6 of Rule VI, where diploma, affidavit or certificate has been lost or destroyed, or is unjustly refused or withheld, or cannot be procured on account of the death or absence of the person or officer who should have made it; those cases are special and exceptional — the form therefor can be readily drafted by the applicant to meet the facts in his particular case; and also except (2) under Rule III of the Rules of the State Board of Law Examiners, where a college or university is not registered with the Board of Regents of the State of New York as maintaining a satisfactory standard in respect to the course of study completed by the applicant. In such ease, the applicant must submit -n ith his diploma or certificate of graduation satisfactory proof of the course of study completed by him and of the character of the college or uni- versity of which he claims to he a graduate. That proof is special in each case, and varies with the college and course of study; it involves the filing of a statement of the curriculum, affidavit of course of study taken, proof of educational standing of the college, its requirements for admission, and graduation in the course of study completed, and such other proofs as the applicant may deem satisfactory to the board. 266 Court of Appeat.s Peactice. [^o. 3 Attorney's AiRdavit of Service of Clerkship. Rule V, subds. i and 4; Rule VI, subd. 3. In the Appellate Division of the Supreme Court of the State of New York, Judicial Department. In the Matter of the Application of for Admission to the Bar. State of New York, t'lTY AND COT'NTY OF , being duly sworn, deposes and says: That he is, and was at the dates hereinafter stated, a, practicing attorney of the Supreme Court in this State; that the above-named applicant, after the age of eighteen years, served a i-pftular clerkship in deponent's law office at , commencing on the day of , 18 , and ending on the day of ,18 That during the service of such clerkship as aforesaid, the said did not take more than two months' vacation in any one year; the vacations taken by the said being as follows, viz.: from to Sworn to before me. this day of , IK Note. — See page 154, ante, for note on the rule concerning the taking of vacations. APPENDIX. INSTRUCTIONS OF THE BOARD OF REGENTS OF THE UNIVERSITY TO LAW STUDENTS. Knle V of the Court of Appeals. Snbd. 3. Applicants who are not graduates of a college, or uni- versity, subject to the limitations and requirements hereinafter, in this subdivision, expressed or members of the bar as above- described, before entering ujjon the clerkship, or attendance at a law school herein prescribed, shall have passed an examination conducted under the authority and in accordance with the ordi- nances and rules of the University of the State of J^ew York, in English, three years; mathematics, two years; Latin, two years; science, one year ; history, two years ; or in their substantial equivalents as defined by the rules of the University, and shall have filed a certificate of such fact, signed by the Commissioner of Education, with the clerk of the Court of Appeals, whose duty it shall be to return to the person named therein a certified copy of the same, showing the date of such filing. The regents may accept as the equivalent of and substitute for the examination in this rule prescribed, either, first, a certificate, properly authenti- cated, of having successfully completed a full year's course of study in any college, or university; second, a certificate, properly authenticated, of having satisfactorily completed a four years' course of study in any institution registered by the regents as maintaining a satisfactory academic standard; or, third, a Ee- gents' diploma. All graduates of a college or university existing under the government or laws of any foreign country other than those where English is the language of the people and all appli- cants who apply for law students' certificates upon equivalents or substitutes, as above provided, all or any part of which are earned or issued in said foreign countries, shall pass the Regents' examin- [267] 268 CouBT 01' Appeals Peactice. [Appendix ation ill second year English. The Eegents' certificate above pre- scribed shall be deemed to take efFect as of the date of the com- pletion of the Regents' examination, as the same shall appear upon said certificate. Notes on law-student examinations. 1. The rules and other details of the regents' examinations are given in the Examination Handbook, to be had free on applica- tion. 2. The court does not allow any equivalents for the individual studies here named, but only the equivalents for the entire group. The obvious purpose of excluding equivalents for individual studies is to fix the normal standard at the completion of a high school course, as is definitely provided by law in the case of medical students. Equivalents are therefore reckoned only on this basis, and not on the minimum of specified examinations which are still accepted from those unable to offer certificates of having completed the regular preparation. '3. The acceptance of equivalents by the regents is permissive, not mandatory. They accept equivalents, therefore, only in ac- cordance with the rules found necessary to protect the State against unqualified candidates. 4. Certificates should be issued in due form by the president, dean or principal of the institution ; and should be signed under seal or acknowledged before a notary, unless the institution is in the University of the State of New York, and the signature of the officer issuing is well known in the regents' office. 5. The regents count forty weeks as a full academic year. If the candidate has passed successfully in a registered institution all the examinations for a full year's work the question of actual attendance is not raised. 6. The court and the regents both refuse to recognize as a college or a university an institution which, though taking the name, in reality does work of a lower grade. Colleges of medi- cine, pharmacy, dentistry, business colleges and all similar pro- fessional and technical schools are not registered as colleges. Ap- plicants for examination for admission to the bar are to be deemed graduates of colleges or universities, within the meaning and Appendix] Regents' Insteuctions. '2/69 intent of the rules for the admission of attorneys and counselors- at-law, when they have successfully completed a course of college instruction that requires as a condition of graduation at least six full years in liberal arts and sciences in advance of a com- pleted eight-year elementary course. The court also refuses to recognize as " study in a college " work in an academic or lower department conducted and super- vised by a college. To be accepted as an equivalent by the regents the work must have been of college grade. 7. Besides the institutions of higher education in the State of ISTew York, inspected by the regents, institutions in other States and countries are registered on reliable information that the mini- mum standard is fully met. If credentials are offered from any institution not yet registered (or rejected as below the registration standard) the necessary investigation will be made as promptly as possible and the candidate notified whether the credentials can be accepted. The frequent changes in organization and standards, and the practical difficulties of recording the grade of work outside regularly organized institutions, have made neces- sary the rule that candidates instructed by private tutors or in unregistered private schools, however excellent, cannot be excused from taking the examinations by presenting certificates similar to those accepted from regularly organized and registered institu- tions. 8. The term " regents' diploma " refers not alone to the classi- cal, English and academic diplomas which bear that specific name, but to all graduating credentials whether called certificates or diplomas, which certify from the university to the completion of a full academic course. As some candidates prefer to pass examinations in the higher branches more recently studied rather than in more elementary subjects in which they have become rusty, they are allowed to select from the entire list of over sixty studies in which the regents examine, provided that the total academic counts equal a full course. Court Rule II, in effect -luly 1, 1882, prescribes that any per- son not a graduate of a college or university shall, before enter- ing upon the clerkship or substituted course of study or within three months thereafter, pass a regents examination in (1) arith- metic, (2) English composition, (3) grammar, (4) geography. 270 CouET OF Appeals Peactice. [Appendix (5) orthography, (6) English history, (7) American history, or their substantial equivalents. ■Court Kule II, in effect April 13, 1891, prescribes that any person not a graduate of a college or university registered by the regents shall, before entering upon the clerkship or substituted course of study or within one year thereafter, pass a regents examination in (1) arithmetic, (2) English composition, (3) Eng- lish history, (i) United States history, (5) first year Latin, (6) geometry, (Y) civics, or their substantial equivalents. The law student whose course had begun as shovra by the records of the Court of Appeals or an incorporated law school of this State at the date of this rule, could file the law student certificate re- quired by the court rule of July 1, 1882. 'Court Rule II, in effect October 28, 189'2, prescribes that any person not a graduate of a college or university registered by the regents shall, before entering upon the clerkship or substituted course of study or within one year thereafter, pass a regents examination in (1) arithmetic, (2) English composition, (3) English history, (4) United States history, (5) first year Latin, (6) geometry, (7) civics, or their substantial equivalents. The law student whose course had begun, as shown by the records of the Court of Appeals or an incorporated law school of this State at the date of this rule, could file the law student certifi- cate required by the court rule of April 13, 1891. Court Eule V, 3, in effect January 1, 1895, prescribes that any person not a graduate of a college or university registered by the Eegents, or a member of the bar, shall, before entering upon the clerkship or substituted course of study or within one year thereafter, pass a Eegents examination in (1) arithmetic, (2) English composition, (3) advanced English, (4) English history, (5) United States history, (6) first year Latin, (7) ge- ometry, (8) civics, (9) algebra, (10) economics, or their sul> stantial equivalents. The law student whose course had begun, as shown by the records of the Court of Appeals or an incor- porated law school of this State at the date of this rule, could file the law student certificate required by the court rule of October 28, 1892. Law students, who filed the certificate of clerkship or who be- gan the study of law in a registered law school subsequent to Appendix] Regents' Insteuctiojn's. 271 July 1, 1907, and prior to June 1, 1908, may obtain the law student certificate by passing Regents examinations at seventy- five per cent, in any subjects aggregating sixty counts, or in the set subjects mentioned in the preceding paragraph except that second year English must be substituted for first year English. The exact ground covered by these examinations is shown in the Regents' Academic Syllabus, mailed prepaid for twenty-five cents. The calls for sample examination papers grew so burden- some that further free distribution became impracticable. All the papers for the year are mailed for twenty-five cents in paper covers. Unbound sample papers can be had for ten cents for not exceeding ten subjects. Law student certitcate. As is seen from above notes, the regents' law student certifi- cate may be secured by passing an examination in the subjects specified in subdivision 3 of Rule V : in English, three years ; mathematics, two years ; Latin, two years ; science, one year ; his- tory, two years, or in other subjects, on which examinations are held, aggregating sixty academic counts, which number of counts represents the completion of a full four-year academic course. The meaning of the term " counts " will be seen from the figures prefixed to the different studies in the following table of subjects of examination, denominated " Regents' Studies." On receiving this certificate, the candidate must send it to the clerk of the Court of Appeals at Albany, who will file it and return a certified copy on payment of one dollar. The Examina- tion Department issues but one certificate to each candidate. The law student certificate takes effect the date of the com- pletion of the Regents' examination or the equivalent. Regents' examination in second year English is required of applicants from foreign countries other than those where English is the lan- guage of the people for certificates upon equivalents or substi- tutes. ACADEMIC SUBJECTS. Group 1 — Language and Lttebatube. Enflish, first year 4 English grammar 2 English, second year 3 History English literature 2 English, third year 3 English, 3 years 10 English, fourth year 3 / 272 CouET OF Appeals Pbactice. [Appendix Latin, first year 5 Latin, second year 5 Latin, third year 5 Latin, fourth year 5 Latin grammar Latin composition Prose at sight Verse at sight Greek, first year . . . Greek, second year. Greek, third year.. Grammar 5 Greek composition 5 Prose at sight 5 Verse at sight Hebrew, first year. 5 Hebrew, second year . French, first year... French, second year German, first year . . German, second year. Spanish, first year. . . Spanish, second year. 5 5 5 5 5 5 French, third year 5 French, fourth year 5 German, third year 5 German, fourth year 5 Spanish, third year 5 Italian, first year 5 Italian, second year . Advanced arithmetic Algebra Intermediate algebra Advanced algebra . . Group 2 — Mathematics. 2 Plane geometry 5 Solid geometry 2 Trigonometry . . 3 Group 3 - Physics 5 Chemistry 5 Biology 5 Elementary botany 2% Elementary zoology 2% - Science. Physiology and hygiene. Advanced botany Advanced zoology Physical geography . . . . 5 5 5 Group 4 — Histop.t and Science. Ancient history 3 or 5 History of Great Britain and Ireland 3 or 5 Modern history 1 3 Modern history II 3 American history and civics .... 5 Civics 2 Economics 2 Group 5 — Commercial Sub.tects. Elementary bookkeeping and business practice 3 Advanced bookkeeping and office practice 5 Commercial arithmetic 2% Business writing Typewriting 2% Commercial law 2% History of commerce 3 Commercial geography 2% Commercial English and corre- spondence 3 Shorthand I 5 Shorthand 11 5 Groitp G - Chorus singing and rudiments of music 2 Harmony and counterpoint 7 - Music. Musical form and analysis 4 Dictation and melody writing. . . 3 Acoustics and History of music. . 4 Appendix] Regents' Insteuctions. 273 Groit 7 — Drawing. Design 2 Mechanical drawing II 3 Representation 2 Mechanical drawing III 2 Advanced design 2 Mechanical drawing IV 2 Advanced representation 2 Architectural drawing 2 Mechanical drawing 1 3 Grouf S — Other Subjects. History and principles of educa- Psychology and principles of ed- tion 3 ucation' 3 NOTES. Order of siudies. — There is no restriction in the order in which studies may be taken. Time limit. — There is no limit of time, but all credentials issued by the University are good till canceled for cause. Seventy-five per rent, of correct answers is required in all subjects. Duplicate credentials. — On request at any time for a fee of iive cents each, duplicates of record cards will be issued, and for a fee of twenty-five cents a formal certificate showing in in- dividual cases all subjects passed to date. Such credentials will meet the needs of those who wish official verification of the school records either for admission to other schools or before regular certificates or diplomas have been earned. Duplicates of pro- fessional credentials, however, such as law and medical student certificates, will not be issued except on satisfactory evidence of loss or destruction of originals. Candidates not attending schools in which Eegents' examina- tions .are held should send notice at least ten days in advance, stating at what time and in what studies they wish to be examined, that required desk room may be provided at the most convenient place. Candidates who fail to send this advance notice can be ad- mitted only so far as there are unoccupied seats. Professioiml students. — Candidates having credentials which can be accepted in place of examinations, should send them to the Examinations Division, State Department of Education. Special academic tests for professional students are held in New York city, Albany, Syracuse and Buffalo. A fee of twenty-five cents for each half day session or one dollar for the sessions of the 18 274: Court of Appeals Peactice. [Appendix entire week is required for admission to these examinations. Candidates should secure ticlcets from Albany ten days in ad- vance. Those failing to secure tickets in advance vfill be admitted so far as accommodations will permit, but will be charged an extra fee of twenty-five cents. A fee of twenty-five cents is required for each law, . . . credential. INSTRirCTIONS TO CANDIDATES To he read aloud to all candidates hy the principal or deputy in charge at the beginning of each sessiori. 1. No candidate shall communicate in any way or bring to the examination, books or helps of any kind, or question any examiner. 2. At the close of the examination in' each subject each can- didate must affix to his answer paper, in the line following the last answer, the following declaration, subscribe his name and then deliver his answer paper to the examiner: I now, at the close of the examination in (name subject), de- clare that prior to this examination I had no knowledge of what questions were to be proposed, and have neither given nor re- ceived explanations or other aid in answering any of them. Every set of answers lacking this declaration, however satisfac- tory in other respects, will be rejected. 3. Any candidate detected in trying to give or obtain aid will be instantly dismissed from the room and his papers for the entire week will be canceled. 4. Any candidate who, with fraudulent intent, endeavors to obtain any credential of the University shall be debarred from entering any Regents' examination till admitted by special per- mission from the University on written application to the secre- tary. The University reserves the right to revoke any of its credentials obtained by disregard or violation of any of its rules. Ignorance of these rules will not be accepted as an excuse. 5. 'So candidate shall enter the examination more than forty- five minutes late; and no candidate shall leave the room within forty-five minutes after the distribution of question papers. (i. Heed strictly all directions on the question papers and read the questions very carefully. Do not give information that is not asked for. Write in ink on both sides of the paper. Give special Appendix] Eegetv'Ts' Instructions. 275 attention to general order, legibility and neatness. Use only paper distributed by the examiners. 7. Write answers in the order of the questions. Do not copy the questions, but write the number of each question in the left margin before the answer. Leave a line blank after the answer to each question. 8. Papers should not be folded. At the top of each sheet or half sheet, should be written, on two separate lines: 1 (subject), 2 (date), 3 (place), 4 (name) ; e. g. Arithmetic Albany High School June 15, 1905. James Burns Go m muni cations. — All communications should be addressed to Examinations Division, State Department of Education, Albany, I^. Y. DAILY PKOGRAM OF EEGENTS' EXAMINATION. SEPTEMBER 1911-1915. September examinations are for professional and technical students only. The day of the week of the September examina- tions will vary from year to year. 9:15 A. M. Advanced aritlimatic. German, first year. Latin, first year. Elemenitary algebra. Intermediate algebra. Ancient history. Modern history, 1 and 2 9:15 A. M. German, second year. Plane geometry. Physics. English grammar. Commercial geography. 9:15 A. M. German, third year. Arithmetic. American history and civics. Stenography. Latin, second year. 1:15 P. M. English, first year. English, second year. English, third year. English, 3 years. 1:15 P. M. French, first year. French, second year. French, third year. Physiology' and hygiene. Economics. Elementary bookkeeping. Chemistry. Advanced bookkeeping. Latin, third year. 1:15 P. M. Physical geography. History of Great Britain and Ireland. Civics. Typewriting. Drawing, design. Drawing, representation. 276 CouET OP Appeals Peactice. [Appendix JANUARY AND JUNE, BEGINNING JUNE, igii. The oral examination in reading may be held any time during examination week at the convenience of the examiner. MONDAY. 9:15 A. M. Geography. Elementary algebra. Intermediate algebra. Solid geometry. Advanced algebra. Advanced bookkeeping practice. Harmflny and counterpoint. and office 1:15 P. M. Spelling. Ancient history. American history with civics. Civics. Shorthand, 1 and 2. Rudiments of music. Dictation and melody writing. TUESDAY. 9:15 A. M. Arithmetic. Plane geometry. Advanced arithmetic. Commercial arithmetic. Chemistry. Physics. Drawing 1, design. Typewriting. Acoustics and history of music. Musical form and analysis. 1 : 15 P. M. Elementary English. English, first year. English, third year. English, 3 years. Trigonometry. WEDNESDAY. 9:15 A. M. Biology: Botany. Zoology. Physiology. History English language and lit- erature. Latin, 3. Latin grammar. Psychology and principles of educa- tion. Economics. Commercial law. Advanced drawing: 1 Representation. 2 Advanced design. 3 Advanced representation. 1:15 P. M. Elementary United States history with civics. Physical geography. Advanced botany. Advanced zoology. History of Great Britain and Ireland. Modern history, 1. Elementary bookkeeping and business practice. Business writing. 9:15 A. M. Latin, 2. Latin, 4. Latin prose composition. Latin prose at sight. Commercial geography. Mechanical drawing, 1, 2, 3, 4, THURSDAY. 1:15 P. M. Latin, I. Historv of commerce. English, 2. English grammar. English, 4. Commercial English and correspond- : enee. Appendix] Regents' Insteugtions. 277 FRIDAY. 9:15 A. M. Greek, 1. Greek, 3. Greek prose composition. Greek prose at sight. German, 1, 2, 3, 4. History and principles o£ education. Italian, 1, 2. Hebrew, 1. Architectural drawing. 1:15 P. M. Greek verse at sight. Greek, 2. Greek grammar. French, 1, 2, 3, 4. Spanish, 1, 2, 3. Hebrew, 2. TIMES OF EXAMINATIONS. REGENTS' EXAMINATIONS. TIMES AND PLACES. September examinations are for professional and technical students only. September — New York, Albany, Sj'racuse, Buffalo. January — 'New York and about 550 academies and high schools. June — New York and about 575 academies and high schools. January . . .June . . September 1911. 1912. 1913. 1914. 1915. 16-20 15-19 20-24 19-23 18-22 12-16 17-21 16-20 15-19 14-18 18-20 9-11 15-17 14-16 13-15 THE JURISDICTION OF THE COURT OF APPEALS. The jurisdiction of tlie Court of Appeals is defined by section 9 of article 6 of the State Constitution : § 9. After the last day of December, one thousand eight hun- dred and ninety-five, the jurisdiction of the Court of Appeals, except where the judgment is of death, shall be limited to the re- view of questions of law. No unanimous decision of the Ap- pellate Division of the Supreme Court that there is evidence sup- porting or tending to sustain a finding of fact or a verdict not directed by the court, shall be reviewed by the Court of Appeals. Except where the judgment is of death, appeals may be taken, as of right, to said court only from judgments or orders entered upon decisions of the Appellate Division of the Supreme Court, finally determining actions or special proceedings, and from orders granting new trials on exceptions, where the appellants stipulate that upon afiirmance, judgment absolute shall be rendered against them. The Appellate Division in any department may, however, allow an appeal upon any question of law which, in its opinion, ought to be reviewed by the Court of Appeals. The Legislature may further restrict the jurisdiction of the Court of Appeals and the right of appeal thereto, but the right to appeal shall not depend upon the amount involved. The provisions of this section shall not apply to orders made or judgments rendered by any General Term before the last day of December, one thousand eight hundred and ninety-five, but ap- peals therefrom may be taken under existing jDrovisions of law. The Legislature has the power to further restrict the jurisdic- tion of the court, and also to enlarge such jurisdiction, save only in those special cases which are expressly withdra^vn from review. People ex rel. Com'rs of Charities v. CuUen, 153 J^. Y. 029; Hoes V. Edison Oeneral Electric Co., 150 N. Y. 87. Statutes Regulating thei Juhisdiction oe the Coukt. The following sections of the Codes of Civil and Criminal Pro- cedure have been enacted by the Legislature defining the powers of the Court of A]"ipeals : [278] Jurisdiction of the Court of Appeals. 279 Section 190' of the Code of Civil Procedure: The jurisdiction of the Court of Appeals in civil actions. — The Court of Appeals has exclusive jurisdiction to review upon appeal every actual determination made prior to the last day of De- cember, eighteen hundred and ninety-five, at a General Term of the Supreme Court, or by either of the superior city courts, as then constituted, in all cases in vs^hich, under the provisions of law existing on said day, appeals might be taken to the Court of Ap- peals. From and after the last day of December, eighteen hun- dred and ninety-five, the jurisdiction of the Court of Appeals shall, in civil actions and proceedings, be confined to the review upon appeal of the actual determination made by the Appellate Division of the Supreme Court in either of the following cases, and no others : 1. Appeals may be taken as of right to said court, from judg- ments of orders finally determining actions or special proceed- ings, and from orders granting new trials on exceptions, where the appellants stipulate that upon affirmance, judgment absolute shall be rendered against them. 3. Appeals may also be taken from determinations of the Ap- pellate Division of the Supreme Court in any department where the Appellate Division allows the same, and certifies that one or more questions of law have arisen which, in its opinion, ought to be reviewed by the Court of Appeals, in which case the appeal brings up for review the question or questions so certified, and no other; and the Court of Appeals shall certify to the Appellate Division its determination upon such questions. [Amended by chap. 61 of 1882 and chap. 946 of 1895.] See also §§ 1324-1339. In condemnation proceedings in city of Xew York, see § 989, Greater New York charter. Appeals as of right can only be taken from final judgments and final orders. Van Arsdale v. King, 155 ]Sr. Y. m:^ ; Stevens v. Cent. Nat. Bank, 162 N. Y. 254. Appeal will not lie from order in action. Hammond v. Nat. Life Ass'n, lOS N. Y. 262. Burden of showing that appeal was not well taken is upon respondent. Laidlaw v. Sage, 158 N. Y. 87. What are orders, " finally de- termining." See Matter of Small, 158 N. Y. 120; Village of Champlain v. McCrea, 165 N. Y. 264; Hammond v. Nat. Life Ass'n, 168 N. Y. 262. 280 Court of Appeals Peautice. Limitations, exceptions and conditions: § 191. Code of Civil Procedure. — The jurisdiction Conferred by the last section is subject to the following limitations, excep- tions and conditions : 1. No appeal shall be taken to said court, in any civil action or proceeding commenced in any court other than the Supreme Court, Court of 'Claims, County Court, or a Surrogate's Court, unless the Appellate Division of the Supreme Court allows the appeal by an order, made at the term which rendered the determination, or at the next term after judgment is entered thereupon and shall certify that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals. 2. ISTo appeal shall be taken to said court from a judgment (if ailSrmance hereafter rendered in an action to recover damages for a personal injury, or to recover damages for injuries resulting in death, or in an action to set aside a judgment, sale, transfer, con- veyance, assignment or written instrument, as in fraud of the rights of creditors, or in an action to recover wages, salary or com- pensation for services, including expenses incidental thereto, or damages for breach of any contract therefor, or in an action upon an individual bond or individual undertaking on appeal, when the decision of the Appellate Division of the Supreme Court is unani- mous, unless such Appellate Division shall certify that in it* opinion a question of law is involved which ought to be reviewed by the Court of Appeals, or unless in case of its refusal to so certify, an appeal is allowed by a judge of the Court of Appeals. 3. The jurisdiction of the court is limited to a review of ques- tions of law. 4. Wo unanimous decision of the Appellate Division of the 'Supreme Court that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court, shall be reviewed by the Court of Appeals. Subd. 1. As to questions certified, see Ee Westerfeld, l(i:^) ]Sr. T. 209 ; Pringle v. L. I. K, Co., 157 N. Y. 101. Siibd. 2. On motion to dismiss appeal under this subdivision burden is on moving party. Kaplan v. JST. Y. Biscuit Co., l.'-il ]Sr. Y. 171. Applies to special proceedings. People ex rel. v. Barker, ltr2 X. Y. 417. Unanimous affirmance by Appellate Division affirms all findings of fact. People ex rel. v. Barker. JUEISDICTION OF THE CoUET OF ApPEAI,S. 2S1 152 1ST. Y. 417. See, also, Cronin v. Lord, 161 JT. Y. 90. Wliat questions may be reviewed on certificate. Commercial Bk. v. Sherwood, 162 N. Y. 310. Subd. 3. Court of Appeals may determine whether a question of fact is involved. liershfeld v. Fitzgerald, 157 N. Y. 166. Subd. 4. Fact that decision was unanimous should appear in record. Laidlaw v. Sage, 158 IST. Y. 173. See, also, Hershfeld V. Fitzgerald, 157 JS^. Y. 166. Section applies to general findings of fact. People ex rel. v. Barker, 152 N. Y. 417. What may be reviewed upon order allowing appeal. Kleiner v. Fid. & Dep. Co. of Maryland, 33 Misc. Eep. 188. What questions open to review. See City of Niagara Falls v. l^J". Y. C. & H. K. E. Co., 168 K Y. 610. As to sufiiciency of the certificate required by subdivision 2 of section 191, see Young v. Fox, 155 N. Y. 615. The order of Appellate Division should show that the decision was unanimous. People ex rel. Man. Ry. Co. v. Barker, 152 N. Y. 417. As to what is a judgment of affirmance. See Huda v. Am. Glucose Co., 151 N. Y. 549; Warren v. N. Y. C, etc., P. Co., 163 ]Sr. Y. 525. Section 517 of the Code of Criminal Procedure: In what case appeal muy he tahen by defendant. — An appeal to the Supreme Court may be taken by the defendant from the judgment on a conviction after indictment, except that when the judgment is of death the appeal must he tahen direct to the Court of AppealSj and, upon the appeal, any actual decision of the court in an intermediate order or proceeding forming a part of the judgment-roll, as prescribed by section four hundred and eighty- five, may be reviewed. [Amended chap. 493 of 1887. See § 2, id.. Sup., § 485. j People v. O'Brien, 164 K Y. 57. Section 519 of the Code of Criminal Procedure: Appeal to the Court of Appeals. — An appeal may be taken from a judgment or order of the Appellate Division of the Supreme Court to the Court of Appeals in the following eases and no other : 1. From a judgment affirming or reversing a judgment of con- viction ; -82 Court of Appeals Pbactice. 2. From a judgment affirming or reversing a judgment for the defendant on a demurrer to the indictment, or from an order affirming, vacating, or reversing an order of the court arresting judgment; 3. From a final determination affecting a substantial right of the defendant. [Amended by chap. 880 of 1895. In effect Jan. 1, 1896.] People v. Drayton, 168 N. Y. 10. Section 528 of the Code of Criminal Procedure: Stay upon appeal to the Court of Appeals, et cetera. — An ap- peal to the Court of Appeals, from a judgment of the Appellate Division of the Supreme Court, affirming a judgment of con- viction, stays the execution of the judgment appealed from, upon filing, -with the notice of appeal, a certificate of a judge of the Court of Appeals, or of a justice of the Appellate Division of the Supreme Court, that, in his opinion, there is reasonable doubt whether the judgment should stand, but not otherwise. When the judgment is of death, an appeal to the Court of Appeals stays the execution of course until the determination of the appeal. When the judgment is of death, the -Court of Appeals may order a new trial, if it be satisfied that the verdict was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below. [Amended by chap. 427 of 189Y. In effect May 14, 1897.] Jurisdiction prior to 1895. — Prior to the adoption of the Con- stitution of 1895 the Court of Appeals had the power to review a decision of an inferior tribunal which reversed upon the facts a judgment of the court below. Shultz v. Hoagland, 85 IN". Y. 464. How changed by Constitution. — But now, however, where the reversal is upon the facts the Court of Appeals cannot review. People ex rel. Broadway Imp. Co. v. Barker, 155 IST. Y. 322 ; Bini V. Smith, 161 K Y. 120; Spies v. Lockwood, 165 IS^. Y. 481. But see, also, Benedict v. Arnaux, 154 N". Y. 714; Eice v. Culver, 172 N. Y. 60. It is held in Ostram v. Green (161 N. Y. 353), that the rule that the Court of Appeals cannot review questions of fact does not apply when the affirmance by the Appellate Division was not JUEISDICTION- OF THE CoDRT OF ApPEALS. 283 unanimous, and there is a question as to whether there is any evidence in the case to support a finding of fact. But the unanimous affirmance by the Appellate Division of a judgment directed on uncontroverted evidence does not deprive the Court of Appeals of jurisdiction to consider whether the evidence justified the verdict. Second Nat. Bk. v. Weston, 173 W. Y. 250. As to what decisions are unanimous. See McDonnell v. jST. Y. C. & H. R. E. Co., 159 N. Y. 524; Wangner v. Grimm, 169 N. Y. 421. Section 1337 of the Code of Civil Procedure: What questions are brought up for review.' — An appeal to the Court of Appeals from a final judgment, or from an order, grant- ing or refusing a new trial in an action, where the appellant stip- ulates that upon affirmance judgment absolute shall be rendered against him, brings up for review in that court only questions of law; but where the justices of the Appellate Division from which an appeal is taken are divided upon the question as to whether there is evidence supporting, or tending to support, a finding or verdict not directed by the court, a question for review is pre- sented. In any action on an appeal to the Court of Appeals, the court may either modify or affirm the judgment or order appealed from, award a new trial, or grant to either party such judgment as such party may be entitled to. [Amended by chap. 688 of 1894, and chap. 946 of 1895.J Court controlled by record. Schoephlin v. Coffey, 162 IST. Y. 12. When constitutional questions will be considered when cov- ered by exception, though not specifically set forth. Man. Nat. Bank v. 'Shinn, 163 N. Y. 360. Objection that statute on which action for penalty is based is violative of Federal Constitution must be raised below. Purdy v. Erie R. R. Co., 162 N. Y. 42. Where the Appellate Division reverses upon the facts and grants a new trial, the order cannot be reviewed by the Court of Ap- peals. Bini V. Smith, 161 N. Y. 120. Section 1338 of the Code of Civil Procedure: What questions of fact to be revieived. — IJpon an appeal to the Court of Appeals from a judgment, reversing a judgment 284 Court of Appeals Peactice. entered upon the report of a referee or a determination in the trial court ; or from an order granting a new trial, upon such a reversal ; it must be presumed that the judgment was not reversed, or the new trial granted, upon a question of fact, unless the contrary clearly appears in the record body of the judgment or order ap- pealed from. From Co. Proc. parts of §§ 2(18 and 272. [Amended by chap. 946 of 1895.] Finding of fact, unanimously affirmed conclusi^'e. Genet v. D. & H. C. Co., 167 N. Y. 608. Order stating that reversal is upon law and facts, if no dispute as to facts, judgment reviewable upon questions of law. O'Brien v. East Kiver Bridge Co., 161 N". y. 539. Order reversing judgment not stating that reversal was not upon facts, immaterial when no disputed facts arise. Buffalo & L. S. Co. v. Bellevue L. & I. Co., 165 iS; . Y. 247. As to whether there is question of fact is always question of law. Fairchild v. Edson, 154 N. Y. 199. In the case of the Nat. Harrow Co. v. Bement ii Sons (163 X. Y. 505), it was held that upon an appeal to the Court of Appeals from an order and judgment of the Appellate Division reversing a judgment entered upon the report of a referee, without stating that the reversal was upon the facts, it must be prestimed, under section 1338 of the Code of Civil Procedure, that the reversal was upon the law and the Court of Appeals could consider only three questions : 1. Whether a material error was committed in receiving or rejecting evidence. 2. Whether the conclusion of law is supported by the facts found. 3. Whether any material finding of facts is without any evi- dence to support it. ■See also 164 IST. Y. 501. See also Sweet v. Henry, 175 X. Y. 268. Exceptions, when necessary.' — In the case of Hecla Powder Co. V. Sigua Iron Co., 157 iST. Y. 441, the court, per Vann, J., said: " In a civil action we can only reverse upon exceptions and are compelled to disregard all errors committed by the trial court, unless they are pointed out by an objection and saved by an ex- ception, no matter how serious those errors may be." An exception to this rule is created, however, by section 1339 of the Code of Civil Procedure, which provides that "An excep- JUEISDICTION OF THE CoUBT OF ApPEALS. 2^5 tion is not necessary to enable the Court' of Appeals to review the determination of a question of law, arising upon the verdict." Duryea v. Vosburgh, 121 IST. Y. 57. For the purpose of affii-niing a judgment the Court of Appeals will consider any question, even though not urged in the court below. See Cardoza's Jurisdiction of the Court of Appeals, p. 48. But the contrary seems to be the rule as regards the reversal of a judgment. See Dodge v. Cornelius, 168 E". Y. 241; ''Jurisdiction of the Court of Appeals," Cardoza, p. 47. Note. — Tho jurisdiction of the Court of Appeals is further discussed at length in the notes to the Rules of Practice, ante. Rules of the State Board of Law Examiners in Relation to the Admission of Attorneys and Counselors-at-Law. (As amended, to take effect June i, 1908.) ETJLE I. Each applicant for examination must file witk the Secretary of the Board at least fifteen days before the day appointed for holding the examination at which he intends to apply, the pre- liminary proofs required by the " Rules for the admission of at- torneys and counselors-at-law," as adopted by the Court of Ap- peals, December 20, 1906, and amended to take effect June 1, 1908, from which it must appear afiirmatively and specifically that all the preliminary conditions prescribed by said rules have been fulfilled, and also proof of the residence of the applicant for six months prior to the date of the said examination, giving place, with street and number, if any, which must be made by his own affidavit. Said affidavit must also state that such residence is actual and not constructive. The Board in its discretion may order additional proofs of residence to be filed, and may require an applicant to appear in person before it, or some member thereof, and be examined concerning his qualifications to be ad- mitted to the examinations. The examination fee of $15 must be paid to the Treasurer at the time the application for examina- tion is filed. To entitle an applicant to a re-examination, he must notify the Secretary by mail of his desire therefor, at least fifteen days before the examination at which he intends to appear and file with him, at the same time, his own affidavit stating that he is and has been for the six months prior to such examination an actual and not constructive resident of this State, giving the place of such resi- dence, and street and niimber, if any. EULE II. Each applicant must be a citizen of the State, of full age ; he may be examined in any Department, whether a resident thereof ■ [286] Kule 4] Rules OF THE State BoAED OF Law Examinees. 287 or not, but the fact of his having passed the examination will be certified to the Appellate Division of the Judicial Department in which he has resided for the six months prior to his examination. He must, however, entitle his papers in the Department in which he resides. Note. — iVji applicant must appear for examination in tlie Department in wliich lie entitles his papers, unless permission of the Board otherwise be granted at least fifteen days before the day appointed for holding the ex- amination. EXILE III. In applying the provisions of Eules IV and V of the Eides of the Court of Appeals, " For the admission of attorneys and coun- selors-at-law," the Board will require proof that the college or university of which an applicant claims to be a graduate, main- tains a satisfactory standard in respect to the course of studies completed by him. In case the college or university is registered with the Board of Eegents of the State of JSFew York as maintain- ing such standard, the applicant must submit to the Board, with his diploma or certificate of graduation, -the certificate of the said Board of Regents to that effect, which will be accepted by this Board as prima facie evidence of the fact. Such certificate need not be filed in cases where the Board of Regents, by a general certificate, has certified to this Board that the said college or uni- versity maintains a satisfactory college standard leading to the degree with which the applicant graduated. In all other cases the applicant must submit with his diploma or certificate of grad- uation satisfactory proof of the course of study completed by him and of the character of the college or university of which he claims to be a graduate. RULE IV. The papers filed by each applicant must be attached together, and there must be endorsed upon them the name of the applicant. The papers must be entitled, " In the matter of the application of — ■ for admission to the Bar." Each applicant must state the beginning and the end of each term spent in a law school, as well as the beginning and the end of each vacation that he has had. 288 Court of Appeals Peactice. [Rule C RULE V. An applicant who has been admitted as an attorney in the highest court of original jurisdiction of another State or country, and who has remained therein as a practicing attorney for at least one year, may prove the latter fact by his own affidavit, and must present also a certificate from a judge of the court in which he was admitted or from a county judge in said State, certifying that the applicant had remained in said State or country as a prac- ticing attorney for said period of one year, after he had been ad- mitted as an attorney therein. The signature of the judge must be certified to by the clerk of the court or by the county clerk under the seal of the coiirt. RULE VI. The Board will divide the subject of examination into two groups, as follows : Group 1, Pleading and Practice and Evidence ; Group 2, Substantive Law. Each applicant will be required to obtain not only the requisite standard on his entire paper but also in Group 1 to entitle him to a certificate from the Board. If he obtains the reqiiired standard on his entire paper but fails to obtain the same in Group 1, he will receive a pass card for Group 2 and will not be required to be re-examined therein. He will be re-examined in Group 1 at any svibsequent examination for which he gives notice as required by these rules. Note.— Applicants should file their papers at the earliest possible moment; amendable defects may be discovered, which can be corrected if attended to promptly. Hules of the Court of Appeals Relating to Applications to Practice as Official Examiners of Title. IN THE COURT OF APPEALS. December 9, 1908. Present — Hon. Edgar M. CuUen, Chief Judge, presiding. Ordered, That the following Eules providing for the methods of .ascertaining the fitness of individual applicants for license to practice as Official Examiners of Title, be and the same hereby are prescribed, in pursuance of the provisions of section 9 of chapter 444 of the Laws of 1908, entitled "An act in relation to registering titles to real property and facilitating and expediting its transfer,* to take effect February 1, 1909. * Now section 377 of the Real Property Law; Consolidated Laws, chapter 50; Laws 1909, eh. 52, which section is as follows: Official Examiners of Title. — Before application is made for the registra- tion of a title, it must be thoroughly examined and certified by an " official examiner of title." A person duly admitted to practice as an attorney and counselor-at-law in the courts of record of this state, or a corporation duly incorporated under and by virtue of the laws of this state, and by said laws duly authorized to guarantee or insure titles to real property in this state, and no other person, corporation, or institution, may be admitted to the office or position of, and licensed to practice as, an official examiner of title. The court of appeals shall prescribe rules providing for the methods of ascer- taining the fitness of individual applicants for license to practice as such examiners, and in doing so, shall take into account the length of time during which applicants have practiced law and the amount of work that they have done in the examination of titles to real property. In the case of ex- perienced examiners of such titles, provision may be made for licensing them, without examination, to practice as " official examiners of title." After com- plying with the rules and requirements prescribed by the court of appeals pursuant to this section, an individual applicant may be licensed and ad- mitted to practice as an ofBcial examiner of title in this state, by an order of the appellate division of the supreme court of the department in which he resides, or in which he has an office for the regular practice of law. He may be required to give such a bond as the court may prescribe. A cor- poration may be licensed and admitted to practice as an official examiner of title by an order of the appellate division of the supreme court of the department in which it has its principal place of business, which order shall be made on the certificate of the proper state official that such corporation is duly incorporated under and by virtue of the laws of this state, and by said laws authorized to guarantee or insure titles to real property within this state. Any official examiner of title in counties not exceeding three hun- dred thousand inhabitants may base the certificate and affidavits required by this article, upon searches and abstracts of title made by a corporation duly organized under and by virtue of the laws of this state, and by said laws duly authorized to make and to certify to searches and abstracts of title, provided, however, that said abstract company shall have beea incor- porated for a period of at least two years before the passage of this article. 19 [289] 290 CouET OF Appeals Peactice. [Kule 2 RULES RELATING TO APPLICATIONS TO PRACTICE AS OFFICIAL EXAMINERS OF TITLE. KULE I. Examination of Applicants. Any person duly admitted to practice as an attorney and coun- selor-at-]aw in the courts of record of this State, desiring to he licensed to practice as an OfEcial Examiner of Title, may apply to the 'State Bbard of Law Examiners for an examination as to his fitness. Examinations for this purpose shall be held by the Board either at the same times and places as designated for the examin- ations for admission to the bar, or at such separate times and places as the Board may specially designate. Each applicant for examination must file with the Secretary and Treasurer of the Board, at least fifteen days before the day appointed for holding the examination at which he intends to ap- ply, a written application for examination, together with the fee of fifteen dollars and an affidavit stating his age, residence and office address, when and where he was admitted to practice as an attorney and counselor-at-law, the length of time during which he has practiced law, that he has duly filed in the office of the clerk of the Court of Appeals the oath or affirmation required by chap- ter 165 of the Laws of 1898, as amended,* with the date of such filing, and stating the nature and amount of work that he has done in the examination of titles to real property. KULE II. Experienced Examiners of Title. Any person duly admitted to practice as an attorney and coun- selor-at-law, claiming to be an experienced examiner of titles to real property, may be licensed by the Appellate Division of the Supreme Court to practice as an official examiner of title, without having passed the examination prescribed by Rule I, provided the fact of sufficient experience is found and certified to by the State Board of Law Examiners. Eor this purpose, the applicant may submit, at any time, to the Secretary and Treasurer of the Board, * Now embodied in section 468 of the Judiciary Law. Rule 3] Obticial Examinees of Title. 291 together with the fee of fifteen dollars, an affidavit, stating his age, residence and office address, the date of his admission to prac- tice as an attorney and counselor-at-law, his compliance with chap- ter 165 of the Laws of 1898, the length of time that he has practiced law, the nature and amount of work that he has done in the examination of titles to real property, which must have covered a period of at least five years, the number of titles that he has examined upon the transfer or mortgage of real property in this State, and specifying in detail the general location of the property and the names of one or more of the owners or mortgagors thereof. The applicant shall also procure and file an affidavit of the register, clerk or deputy having charge of the records of, the county in which the applicant resides or where his law office is situated,, stating the nature and amount of his work in searching titles in such register's or clerk's office, together with an affidavit 'of at least; two attorneys-at-law, actually engaged in the practice of their pro- fession in that judicial department for at least five years last past, who are personally acquainted with the applicant, stating their knowledge of his work as an examiner of titles, and expressing their judgment as to his competency to discharge the duties of an official examiner of titles, which proof must be satisfactory to the State Board of Law Examiners. ETJLE III. ' Bonds. No person shall be licensed or admitted, nor authorized or em- powered to practice, as an official examiner of title, until he has executed and filed a bond, joint and several in form, with two or more sufficient sureties, to the People of the State of New York, in the penal sum of not less than $5,000, conditioned faithfully to perform and discharge the trust reposed in him as an official exam- iner of title, to obey all lawful decrees and orders of the court touching the administration of his office, and to pay all loss or damage which the assurance fund created by chapter 444 of the Laws of 1908 may sustain through, or which may be occasioned to any person by, any fraud, negligence, omission, mistake or mis- feasance by him in his office or position of examiner of title as aforesaid. 292 CouiiT OF Appeals Peactice. [Eule 5 The sureties upon said bond shall each make his affidavit, sub- joined thereto, to the eft'ect that he is a resident of, and a house- holder or a freeholder within the State and is worth the amount of the penalty of the bond specified over all the debts and liabilities which he owes or has incurred and exclusive of property exempt by law from levy and sale under an execution. Said bond shall be approved by the presiding, or acting presiding, justice of the Appellate Division of the department in which the applicant is licensed, and such justice may require the sureties to appear be- fore him and to justify. The bond shall be filed in the office of the clerk of that court, and the obligors therein shall be liable for any loss or damage sustained thereunder by reason of any defect in any title certified by the examiner for the period of ten years from the date of such certificate of title. Such bond shall be renewed at least once in every five years, and any failure to renew the same within such period shall, of itself, operate as a revoca- tion of the license. In case of the insolvency of either of the sureties, the Appellate Division must order the renewal of the bond forthwith. ETTLE IV. Certificate of Board of Examiners. If the State Board of Law Examiners, upon examination, finds an applicant qualified under Rule I, or finds an applicant to be an experienced examiner of title, under Rule II, it shall certify to the Appellate Division of the Supreme Court of the depart- ment in which the applicant resides, or in which he has an office for the regular practice of law, the fact that the applicant has complied with the rules and requirements prescribed by the Court of Appeals, as precedent to admission to practice as an official examiner of title in this State. RULE V. Suspension from Practice and Removal from Office. An individual official examiner of title, who is guilty of any deceit, malpractice, crime, misdemeanor or negligence as such examiner, or who is guilty of any fraud or deceit in the proceed- ings by which he was admitted to practice as such examiner; may Rule 2] Officiai, Examiners of Title. 293 be suspended from practice, or removed from office and his license revoked, by the Appellate Division of the Supreme Court hy which he was licensed as an official examiner, upon notice and hearing had. ■Suspension from practice as an attorney and counselor-at-law shall, of itself, work a suspension from practice as such examiner. and his disbarment as an attorney and counselor-at-law shall, oi itself, work a revocation of his license as an examiner. KULE VI. Appellate Division Rules. The justices for each Appellate Division may adopt for theii several and respective departments such additional special rules for ascertaining the fitness of applicants as to such justices may seem proper. EUIE VII. Board of Examiners' Rules. The State Board of Law Examiners may adopt such rules for carrying out and applying these rules as may be consistent there- with. RULES OF THE STATE BOARD OF LAW EXAMINERS IN RELATION TO APPLICATIONS FOR LICENSE AND ADMISSION TO PRACTICE AS OFFICIAL EXAMINERS OF TITLE, TO TAKE EFFECT FEBRU- ARY I, 1909. RULE I. Applicants who are citizens of the State will be certified for admission to the Appellate Division of the department of their residence. A nonresident applicant will be certified for admis- sion to the department in which he has and maintains an office for the regular practice of the law. RULE II. The papers filed by each applicant must be attached together. and there must be indorsed upon them the name, residence and office address of the applicant. The papers must be entitled " In 294 CoTJET OF Appeals Practice. [Rule 4 the matter of tie application of for license and admission to practice as an official examiner of title," and in the department in which the applicant applies for admis- sion. RULE III. To entitle an applicant to a re-examination he must notify the Secretary by mail of his desire therefor, at least fifteen days be- fore the examination at which he intends to appear, and file with him at the same time his own affidavit stating his place of resi- dence and the post-office address of his office which he maintains for the regular practice of the law. RULE IV. Applicants will be examined as to their fitness to be licensed to practice as official examiners of title, and in the Eeal Property Law, Wills Law, Domestic Relations Law, Surrogate's Law and Practice, and in other topics relating to the work of examining and dealing with titles to real property in the State of ISTew York. INDEX. PAGE ABSTRACT QUESTIONS — Power of Appellate Courts as to 56, 69 ADMISSION OF ATTORNEYS: Statutory provisions as to 217-220 Court of Appeals may make rules for 1, 217 Rules for, how changed 1, 217 how promulgated 2 regulations for promulgation of, not mandatory 2 S'ormer rules and changes in 4, 216, 226, 229, 232, 240, 249 Right to, confined to citizens of State 222, 227 Aliens and non-residents ineligible 227 Race or sex not a, bar to 2 IS Periods of law study 231 duplication of time prohibited 237, 24€ exception 237, 24( College graduates, allowance of time to 23S exempt from regents' examination 239, 241 Regents' examination and certificate : when examination must be passed 236 when certificate should be filed 237, 242 certified copy ; fee for 24c when to take effect 237, 24t former rules 240, 241 changes effected by present rule 23£ effect of failure to pass examination within time prescribed . . . 241 affidavit and order necessary 25t certificates issued on equivalents validated 25S filing certificate nunc pro tunc; not allowed 25i Instructions as to regents' examination 26'i And see Regents of the Univebsitt. Clerkship in law office: as a, fulfilment of requirement of law study 23f must be after age of eighteen 23£ period of law' study 23S computation of time 237, 24' vacations 237, 24* ■duplication of time 237, 24< service of, how proved 246, 247, 25] And see Studt of Law. [295] 296 Index. ADMISSION OF ATTORNEYS— (Continued) : Clerkship certiiicate : PAGE. requisites of 243 foiTU of 263 duty of attorney to file 237, 245 certified copy ; fee for 245 should be filed at commencement of clerkship 237, 243 when may be filed nunc pro tunc 242, 252, 253 affidavit of attorney required 253 order, and certified copy; fee for 254 Change of attorney: new certificate not required on 245 Law schools : character of, defined 234 attendance at, as a fulfilment of requirement of law study 223, 234, 237 period of law study 231 must be after age of eighteen 235 period of attendance, and vacations 237, 238, 243, 248 attendance at, how proved 250, 251 And see Study of Law. Papers required from law students 251 Persons admitted in another State or country: admitted to examination when 231, 234 regents' examination and certificate not required '234 one year's law study here required 234- certificate, if clerkship is pursued 234 changes in rule concerning '. 232 aliens not eligible 227 Persons who have practiced three years in another State or country: may be admitted without examination 226 qualifications required 228 aliens not eligible 227 Citizens entitled to practice in foreign country: when may be admitted without examination 226 qualifications required 226 State Boar-d of Law Examiners ; powers and duties of 217, 218 254 examination by, for admission 218, 254 prerequisites to examination by 231 proof of compliance with rules to be filed with 247, 25il compliance with rules deteraninedi by 218 times and places of holding examinations 218 fees paid to 218 scope of examination 255, 288 admission upon certificate of 218, 227. 256 Index. 297 ADMISSION OF ATTOENEyS— (Continued) : page. Form of applicant's affidavit, etc 203 Appellate Division of Supreme Court: admission and license by 210, 220, 229 admission on certificate from board of examiners 218, 229, 257 prerequisites to admission 229 proof of good moral character 229 rejection of applicant, when reviewable 229 attorney's oath of office 218 certificate of admission 220 And see Supreme Court. Certificates lost or withheld; other proof accepted 248 Examination may be in any department 233, 250, 286 Fraud or deceit in obtaining admission 219, 231 Practicing without admission, punishable 221 Hegistration of attorneys 258 AFFIDAVITS: On failure to file return 11, 28 On failure to seiTe case 108, 109 Of notice of affirmance by default 203 Of applicant for admission 233, 263 Of attorney, for service of clerkship 250, 263 To file certificates nunc pro tunc 252, 253 For registration of attorney 258 ALIENS: Not eligible for admission to the bar 222, 227 Declaration of intention, not enough 227 AMENDMENTS: Of rules of court 1, 4 Of record; must be by court below 88 resettlement of case 88 insertion to show reversa.1 on facts 89 ipower of court below to make, after appeal 19, 89, 91 as indicated by remittitur 201 Power of Court of Appeals to make under § 723 of Code 91 Of remittitur 200 And see Returx; Remittitur. APPEAL: Notice of, not effectual until aippeal perfected 13 Substitution of parties on 97 Undertaking essential to perfect 13, 21 When appeal perfected 13, 22 Papers to be transmitted on 11 And see Return. 298 Index. APPEAL — (Continued) : page. Allowance oif, and certification of question 28 Motions to disimiisa 151 for failure to file undertaking 25 Motions to withdraw 153 Dismissal of, on failure to file return 11, 28 practice of clerk's office on 27 fee for certificate and copy order 28 in criminal causes 28 Dismissal of, on failure to serve copies case 108 remittitur to issue, if return filed 108 relief, after remittitur issued 108 practice of clerk's office on 109 entry of order, on receipt oif affidavit ; fee for 109 issuance of remittitur ; fee for 109 on call of calendar 172 practice of clerk's ofiice on 173 in criminal causes 174 Dismissal of, by stipulation 174 practice of clerk's office on 174 Second and subsequent; place on calendar 166, 209 From orders entitled to be heard on motion day. See Obdebs. Dismissal of, in criminal causes: for want of return 28 for irregularity, etc 153 APPELLATE DIVISION OF SUPREME COURT: Return from, under § 1339 of Code 14, 18 Amendment oif order of, to show reversal on facts 89 May amend record, after change in justices composing 91 Allowance and certification of appeal! by 29, 30, 31, 52, 59 Unanimous decision of 30, o9 And see Admission of Attokneys ; Supbeme Cotjbt. APPLICATION FOR LEAVE TO APPEAL: Time and method of 29, 30, 52, 59 APPORTIONMENT: Causes involving, entitled to preference 163 And see Peeferred Cases. ARGUMENT: Procedure on 160 Judges absent from : cause deemed submitted to 118 may take part in decision 145, 175 Time allowed counsel on 160 Number of counsel heard on 160 Index. 299 ARGUMENT — ( Continued ) : page. Notice of before return filed, ineffectual 27, 200 before order for new calendar, ineffectual 27, 209 except in criminal causes and appeals from orders 27, 145 for new calendar, when must be served and filed 209 proof or admission of service requisite 206, 209 in preferred causes, requisites of 162, 209 in criminal causes 146 ASSESSMENTS FOR TAXATION: Preference of aippeals in proceedings to review 166 to be heard as motions 171 ATTORNEYS: In case below, continue to act on appeal 94 Continuation of authority of 94 Effect of death of client on authority of 94 Unauthorized appearance of 94 Aippeal by new 94 Substitution of 95, 98, 99, 100 must be by order and witli notice 95, 96 order must be obtained from Court of Appeals on 95, 96 Death or disability of 96 Notice to appoint another 96 ilemoval of, from State 96 Kesidence of, in State ; exception 96, 97, 221 Oath of office of 208 Registration of 258, 280 Suspension of, to be on notice 219 Are officers of the court 221 Tenure of office of 221 Duty of, to file clerkship certificate 237,243, 244 See, also. Admission of Attobnets. BOARD OF LAW EXAMINERS: Creation and duties of 217, 254 Members of 255 ■Compensation of 217, 254 Rules adopted by 233, 239, 286 And see State Boaed of Law Examiners. BOARD OF REGENTS: Caiw student examinations, under rules of 237, 268 Certificates issued by, to law students 237, 239, 271 Instructions of, to law students 274 And see Regents of the Universitt. CALENDAR: Control of, by court 147, 156 What causes placed on 206 300 Index. CALENDAR— (Continued); page. Making up new . .206, 207, 209 wlien made 208 order for, liow announced' 208 Position on, regulated by date of filing return 27, 206, 209 Additions to, after made up 209 Motions to correct 209 iSt'ofice of argument, when requisite 208 filed ibefore return filed, ineffectual 27, 206 time of notice, fixed by order 209 Note of issue not required 27 Reservation of causes on 146 Exchange of causes on 1.5^, 159 of cause not on, with cause on 1.58 must be before cause on day calendar 159, 160 Preferred causes on 162 practice in reference to 171, 209 (And see Prefeeked Causes. Criminal causes on 145, 209 order calendar 157 notice of argument for 157 naotion calendar 157 Day calendar 158, 159 when made up 159 nuniber of causes on 158 call of 138, 159 causes passed on call of 158 reserved causes may be passed 146 postponement of cause on 158—159 defaults on call of 172 reversal by default, not allowed 172 affirmance by default, wlien granted 17'2, 174 disonissal on call 173 CASE: Of what must consist 101 Must be a copy of return 101 Must contain opinions af court below 102 function of opinions 102 Must be printed 107 mode of printing 107 size of paper 107 Appellant to serve three copies of, on respondent's attorney 107 when time to serve begins to run .■ . 108 failure to serve copies of 108 eflfect of default lOS dismissal of appeal on 108 Indes. 301 CASE— (Continued): Appellant to serve three copies of — (Continued) : page. opening default 108 return not filed, no excuse 108 relief after remittitur issued 109 practice of clerk's office, on default 109 order entered, on affidavit 109 remittitur issues, if return filed 110 Appellant to file eighteen copies of, with clerk 110 except in appeals under Rule XI 110 time of filing prescribed 110 distribution of filed copies 110 Appellant to furnish copies of, in appeals from orders 158 time of furnishing 158 Imperfect case, remedy for 109 Case in capital causes 106 CERTIFICATE: Of clerk below, to return j.3 stipulation in lieu thereof 14 And see Eettjen. Of clerk of Court of Appeals, no return filed 11, 28 Of Appellate Division, of question for review 29, 52, 58 of unanimous decision 59 Of attorney, of commencement of clerkship 237, 245, 247, 263 of student's character 229 Of regent's, of passing law student examination 237, 239, 271 under former rules 249 of registration of coUege or university 239, 269 issued on equivalents, validated 252 Of graduation from college 247, 249 Of attendance at law school 248 Of admission in another State or country 247 Of passing examination for admission 216, 23d, 233, 257 Of admission to practice 218 Of registration 258 An d' see ADMISSION OF Attorneys. CERTIFIED QUESTIONS: Under § 190 of Code 52 Under § 191 of Code 60 CLERK OF COURT OF APPEALS: Practice of, as to filing returns 27 on dismissal for failure to file returns 28 as to substitutions 101 on dismissal for failure to serve case 109 as to reservations by stipulation 145 302 Index. CLERK OF COURT OF APPEALS — (Continued) : Practice of — -(Continued): page. as to motions and appeals from orders 157 as to day calendar 159 as to preferred causes 171 on affirmance by default 173, 203 on dismissal on call of calendar 173 on dismissal by consent 174 as to decisions and remittiturs 201 in making new calendar 206, 209 on decision of motion for reargument 215 in reference to regents' law student certificates 242, 255 in reference to law student clerkship certificates 245, 253 Papers to be filed with: return on appeal 11 affidavit of notice to file return 11 affidavit of notice to serve case 108 sixteen copies of case ' 110 sixteen copies of points 110 stipulation to reserve cause 147 notice of argument 157, 206 note of exchange of causes 1515, 160 proof of notice of affirmance by default 203 regents' law student certificate 236 certificate of commencement of clerkship 237 affidavit of admission, for registration of attorney 259 Papers to be delivered to: consent for order of substitution 101 motion papers, in submitted motions 157 copies of case in appeals from orders 158 copies of points in appeals from orders 158 papers on motions for reargument 215 affidavit to file certificate nunc pro tunc 253, 264 Registration of attorneys by 260 CLERKSHIPS OF LAW STUDENTS. See Admission of Attorneys. CONSTITUTION: Federal ; privileges of citizenship 222 New York of 1846; admission of attorneys 227 New York of 1894; jurisdiction of Court of Appeals 29 restriction of appeals 29 preference of apportionment causes 163 judges of Court of Appeals ; quorum 175 CORPORATIONS: Not to practice law 2-24 Index. 303 costs: page. Of appeal ; on dismissal 11, 26, 107 To be adjusted and inserted in court below 184 On interlocutory order 184 Irregular insertion of, in judgment on remittitui* 1'85 Provisions of remittitur as to 185 Meaning of " with costs " 187 Damages by way of, for delay 188 Term fees ; number of terms 207 Of action; allowance of, after appeal decided 188 Restitution of 189, 19'1 And see Fees. COUNTERCLAIM: Covered by judgment absolute on stipulation 183 but not as against the State 184 COURT OF APPEALS: Jurisdiction of 29, 278 when attaches 24 when ceases 195 restoration of, by return of remittitur 196 when ceases in criminal causes 202 Power of, as to amendments under § 723' of Code 91 When may consider record evidence, not in return 93 Judge of, may order further return 86 may grant order for preference 165, 166, 171 may enlarge time and stay proceedings 204 may revoke orders 204 may allow appeal in certain cases 32, 60 absent from oral argum.ent; cause deemed submitted to 118 right to take part in decision 143, 175 Quorum ; judges necessary to a decision 175 Session or terms of ; recesses 207 Daily sessions, hours of 160 Procedure on arguments 160 Procedure on motion days 158 And see Clebk op Cotjbt op Appeals ; Eitles op Coxjet OP Appeals. CRIMINAL CAUSES: Eeturn and its transmission 28 Dismissal, for want of return 28 for irregularity 153 for delay of argument 158 on call of calendar 174 Capital causes, case in 106 review of facts in 142 fixing time of execution 203 304 Index. CRIMINAL CAUSES — i Continued) : page. Are preferred causes 145, 163 How brought on for hearing 145 How placed on calendar 209 on day calendar 148 preference exhausted 146 Notice of argument 145, 20S Affirmance by default 17-t Reversal, only on argument 174 Number of counsel heard on argument 161 Defendant entitled to closing argument lol Remittitur 202 When jurisdiction of Court of Appeals ceases 202 See Pkefeebed Causes. DAMAGES — By way of costs, for delay 188 DAY CALENDAR. See Calendae. DECISIONS: On what days handed down 201 Publication and notification of 201 Number of judges who must concur in 175 Shared in bj judge absent from argument 145, 175 What, can be rendered on appeal 175 In action embracing number of items 177 Judgment absolute 183 Reversal by divided court 178 Affirmance without opinion 178 Of Appellate Division 36, 59 And see Judgment; Opinions. DEFAULT: On failure to file return 11, 26 when waived 28 opening 26 practice of clerk's office 27 On failure to serve copies of case 107 opening 108 practice of clerk's office 109 Motions granted and denied by 148 not granted by, when interfere with calendar 155 On call of calendar 154, 1 72 dismissal ; practice of clerk's office 173 Judgment of reversal by, not allowed 172 Judgment of affirmance by, when ordered 172 practice ai clerk's office 173, 204 remittitur 204 Index. 305 DEMURRER: page. Interlocutory jiidgmfint on; certified appeal 53, 57, 164 Final judgment on 31, 49, 50 DISCRETIONARY DECISIONS: Not reviewable on appeal 68 DISMISSAL OF APPEAL: By consent, on filing stipulation 174 On failure to file return 11, 26 On failure to serve copies of case 108 On call of calendar 172, 175 In criminal causes 28, 153, 174 Motion for 151 And see Appeal; Default; Ckiminal Causes. S;DUCATI0N department. See Eegekts of the Univebsity. EXAMINATION. See Admission of Aitohnets; State Board of Law Examinees; Eegents of the University. Examiners. See state board of law examinees. Official examiners of title — rules 290 EXCHANGE OF CAUSES: By stipulation, before causes on day calendar 158, 159 On day calendar, leave of court requisite 160 Cause not on printed calendar 158 Place on subsequent calendars affected by 158, 208 And see Calendars. Exchange of points: Before cause placed on day calendar 110 Requisite to reception by the court 110 Proof of compliance with rule 117 And see Points. EXHIBITS: Not printed, unless in record below 87 FACTS: Review af questions of fact prohibited 29, 31 except in ca^pital cases 29, 33 Unanimous decision of sufficiency of facts not reviewable 29, 31, 76 Review of reversal on facts 74 Statement and discusion of facts 118 Application of former .§§ 1337, 1338 of Code 119 of present §§ 1337, 1338 120 Presumption against reversal on facts 126, 134, 140 Review of facts in capital cases 142 Facts involved in motion 123 Statements in opinions below 102, 103 20 306 Index. fees: page. For filing return 27 For certificate, etc., on failure to file return 28 For order, on failure to serve copies case 110 on affirmance by default 173 For order, on dismissal, on call of calendar 173 on dismissal, on stipulation 174 on motion for reargument 215 For remittitur, on dismissal under rules 110, 173 on dismissal, on stipulation 173, 174 on decision 202 For certified copy regent's certificate 242 For certified copy clerkship certificate 245 order to file nunc pro tunc 254 For certificate of registration of attorney 259 Regents; for duplicate credentials 273 for extra credentials 273 for syllabus and sample examination papers 271 State Board of Examiners; for examination 218, 254, 286 FORMS: Of certificate of commencement of clerkship 263 Of affidavit of applicant for admission 263 Of afiidavit of service of clerkship 266 Of afiidavit for registration of attorney 259 GENERAL RULES OF PRACTICE, THE: Not binding on Court of Apipeals 3 Procedure under, followed when 3 Right to preference under, not appljcaible 3 Relating to certain appeals, not applicable 4 Relating to admission of attorneys 257 GUARDIAN AD LITEM: In case below, to continue to act 94 Notice of new appointment to be served 94 HABEAS CORPUS: Appeal in 41 INSTRUCTIONS TO LAW STUDENTS. See Regents op the Untvebsity. INTERLOCUTORY JUDGMENT AND INTERMEDIATE ORDER: Review of 31, 38, 50, 55, 156, 164 JUDGE: Of Court of A,ppeals: may order further return 86 may grant order for preference 174, 180 Index. SOT JUDGE— (Continued): Of Court of Appeals — (Continued) : , page. may enlarge time 204 may stay proceedings 204 may revoke orders 204 may allow appeal in certain cases 29, 60 absent from argument of cause 118, 145 cause deemed submitted to 118, 145 right of, to take part in decision 17S Of court below: cannot enlarge time to file return 26 except in cases under § 1339 of Code 26 JUDGMENT: Of affirmance, form of 175 What, may be rendered on appeal 176 mode of enforcing 176 By default ; of reversal, not allowed 172 of affirmance, when ordered 172 Absolute covers all the issues 183 includes recovery on counterclaim 184 but not as against the State 184 proceedings on 176 Interlocutory on demurrer, certified ; hearing of appeal 148 And sec Decisions. JURISDICTION: Of Court of Appeals 29, 278 when attaches 24 when ceases 195, 202 in criminal causes 202 restored by return of remittitur 196 defined by Constitution 278 Legislature may further restrict 278 statutes regulating 279 appeals from final judgment 279 from orders 279 limitations under § 191 of Code 280 aippeal by defendant in criminal action 281 stay on appeal 281 jurisdiction prior to 1895 282 how changed by Constitution 282 questions brought up for review 283 what questions of fact reviewed 283 exceptions, when necessary 284 Of court below ; when ceases , 24 retained as to certain applications 24 retained as to amendments 19, 20, 90 308 Index. LACHES: pajge. In substitution, on death d£ attorney 96 Under rule requiring service of copies of case 108 May deprive of right to vrithdravir appeal 101 Restitution denied, by reason of 1 94 LAW EXAMINERS. See State Boabd of Law Examinees. LAW SCHOOLS: Attendance at, preparatory to admission 223, 235 when dependent on regents' examination 234, 237 period of ; school year 237 vacations 237, 243 proof of 242, 246 No exemptions from rules, to graduates of 223, 2.56 provision of Judiciary Law in reference to 217, 223 And see Admission of Attorneys; Regents of the tiniveesity; law ischools ; state board of law Examiners. LAW STUDENTS. See Admission of Attorneys ; Regents of the University; Law Schools; State Board of Law Examinees. LIBEL: Action for, entitled to prciference on calendar 165 LIBRARIES: Cases and points deposited in certain 110 names and location of 117 MANDAMUS: To Special Term or judge, entitled to preference 1G5 And see Special Proceedings. MOTION DAYS: What are 157 Calendar for, of appeals from orders 157 of motion 157 Order of business on 158 MOTIONS: Definitions of " motion " 149 Papers on, how entitled 150 need not 'be printed , 157 Procedure in reference to 157 Motion days 149 procedure on 157, 158 Notice of 157, 158 Calendar of 157 Argument of 157 No apposition, granted of course 149 Ibut not, when would disarrange calendar 155 Index. 309 MOTIONS — (Continued) : pagk. Iif not made on day noticed, denied 149 In Court of Appeals, after jurisdiction acquired 24 In) court below 24 And see Jurisdiction. To amend return 24, 86 lAnd see Return. To dismiss appeal, after being perfected 23, 150, 151 for failure to file undertaking 25 To, withdraw appeal 133 To dismiss criminal appeal, for irregvilarity 153 In reference to undertaking 150 And see Undertaking. To open defaults 26. lOS And see Default. To amend remittitur 200 And see Remittitur. To correct calendar 200 For reargument 209 And see Reargument, Motions foe. (Not entered aifter jurisdiction lost 109. 155 until restored, by return of remittitur lo.>. 19(1 Appeals from orders entitled to be heard on motion day 14S, 155 KEW TRIAL: Costs on granting, on appeal 187 Power to grant, in capital cases 142 T^OTICE: Of appeal ; service of 21, 22. 3S Of filing undertaking, to perfect appe'al l.'l. 22 To file return 11 Of application for further return 86 To serve copies of case 107 Of substitution of attorney 94, 97 To appoint new attornej' 98, 99 To party personally, on death of attorney 97 Of order to show cause, on death of party to appeal 98 Of appointment of new guardian ad litem 94 Of motion 157 Of argument, before return filed, ineflTeetual 27, 200 before oi-der for new calendar, inefi'ectual 29, 20S except in criminal causes and appeals from orders. . .27. 145, 157 for new calendar 206, 209 proof or admission of service requisite 27, 206, 209 in preferred causes 162 must state claim and ground of preference 162 in appeals from orders 157 . in criminal causes 145 310 Index. NOTICE — (Continued) : pagb. To vacate dismissal on call of calendar 172 Of affirmance by default 203 Of motion for reargument 209 NUNC PRO TUNC: Filing undertaking 22 Entering order on remittitur 182 Compliance with directory rule, may be 2 but not in case of mandatory rule 2 Filing regents' certificate 242, 253 Filing clerkshifp certificate 253 OATH OF OFFICE: Of attorney, on admission 218 OFFICIAL EXAMINERS OF TITLE: Rules of Court of Appeals relating to 289 Rules of State Board of Law Examiners 293 Statute providing for (section 377, Real Property Law) 289 OPINIONS: Of Court of Appeals: wlien delivered to State reporter 202 copies of, furnished by State reporter 202 when deposited with clerk 202 concurrence in, when presumed 180 decision without 179 erroneous assumption, point not in, overlooked 212 And see Decisions; Motions fok Reargument. ■Of court 'below : must be inserted in case 102 statement of facts in not regarded 102 not proof of unanimous decision 102 ORDERS: Dismissing appeal, on failure to file return 11, 28 For further return 86 Dismissing appeal, on failure to serve case 108, 109 Of substitution 95, 101 To show cause on death of partj^ to appeal 98 For preference on calendar, when required 166, 170 Enlarging time 204 Staying proceedings 204 Revocation or modification of 204 On motion for reargument 214 iFiling certificates nunc pro tunc 252, 253 Index. 311 ORDERS — (Continued) : page. Appeals from certain, entitled to be heard on motion day . . . 148, 155, 157 final, in special proceedings 148, 155 certified by Appellate Division 148, 155 (placed on motion or order calendar 157, 208, 209 priority regulated by date of filing return 157 notice of argument 157 must be served and filed 157 must state what 157 Cqgiea of case and points in 110, 158 Provisions of Constitution of 1894, as to appeals from 29 Judgment of dismissal must be entered before appeal taken from order 82 And see Motion Days. PAPERS. See Eetuen; Case; Points; Printing Papees; Motions; Reabgument, Motions foe; Admission of Attornets. PARTIES: Substitution of, on appeal 97 application for must be made to appellate court 98 order of 98 practice of clerk's office as to 101 Proceedings, when party dies pending appeal 98 order to show cause 98 PASSED CAUSES: On call of calendar 158 Pesition on subsequent calendars , 158, 209 Preferred cause, loses preference 162 Reserved causes may be passed and lose place 146 PENALTIES: On affirmance, as damages for delay 188 And see Preferred Causes; Damages. PERSONAL INJURY: Appeal in actions for 30, 59, 62 ■definition of 30 POINTS: Must be printed 107 mode of printing 107 size of paper ■ 107 Copies to be filed with clerk 110 how disposed of 110, 117 to be served on opponent 110 time of filing and service 110, 111 essential to reception by the court Ill exception as to appeal under Rule XI 110, 157 proof of service. 117 313 Index. POINTS — ( Continued ) : PAGE. Exceptions not noticed in, abandoned Ill, 211 Questions not raised below 112 New theory of case 115 Supplemental points 110 Waiver of requirement as to service of 117 Withdrawal and substitution of 117 POSTPONEMENT OF CAUSES: On call of calendar, by court 158 Reservation, by court 146 by stipulation of parties 147 And see Reservation of Causes. PRACTICE: When Code and rules silent 3 The General Rules of, application of 3 Pre-existing practice 3 Settled by custom of courts 4 Former rules of, Court of Appeals 4 Of clerk's office. See Clerk of Court of Appeals. PREFERRED CAUSES: Preference of actions involving an apportionment 163 of certain actions by People 163, 168 of criminal actions 145, 163 among civil actions 163, 168 dependent upon representative capacity of party 163, 168 in mandamus or prohibition 163 appeals Irom orders heard on motion day 148, 155 second and subsequent appeals 166, 209 case involving title to office 169 review of tax assessments 166, 171 actions by or against receivers 164, 166 actions affecting N. Y. City Rapid Transit Commission 107 actions under Public Service Commissions Law 167 When order necessary 166, 169 In same class, order of 171, 208, 209 Party entitled to preference may withdraw former notice, etc 171 Practice of clerk's office as to 171, 208, 209 Notice of argument in, necessary 162, 208, 209 requisites of 162, 208, 209 Passed, lose preference 162 PRINTING PAPERS: What papers must be printed 107 mode of printing 107 size of paper 107 Disbursements for, dependent on compliance with rule 107 Index. 313 PRINTING PAPERS — (Continued) : page. Motion papers need not be printed 157 except briefs on motions for reargument 210, 211 And see Case; Points. QUESTIONS FOR REVIEW: Questions of law 29, 30, 63, 141, 142 Certified questions 30, 31, 32 REARGUMENT, MOTIONS FOR: Notice of, must state grounds 209 may be for any Mbnday when court sits 215 Must be submitted on printed briefs 209 what briefs must state 210 Papers on, must show what 210 Record must present question 211 Insufficient grounds for : settlement of questions in other actions 211 death of party, without substitution 211 omission to present point 211 hardship from judgment absolute 212 amendment of defects, since decision 212 amendment showing reversal on facts 212 erroneous assumption point overlooked 212 proceedings in conference chamber 213 Relief by new trial, instead of reargument 213 Motion, after remittitur has gone down 214 Return of remittitur, for purposes of motion 214 Procedure, on motion 215 submission of pa,pers 215 entry of order, on decision 215 RECORD. See Amendmekts; Return. RECORD EVIDENCE: When may be considered, although not in return 93 REGENTS OF THE UNIVERSITY: Law students exajninations undfer rules of 235, 236, 267 college graduates exempt from 235, 236, 249 persons admitted elsewhere exempt from 235 Certificates issued by, to law students 237, 239, 268 Biust be filed with clerk of Court of Appeals 237, 242 issued on equivalents, valida/ted 252 when to take effect 237, 240, 243 Instructions of, to law students : equivalents of examination 267, 268 certificate from institutions 268 what institutions recognized 269 314 Index. REGENTS OF THE UNIVERSITY— (Continued) : Instructions of, to law students — (Continued): page. ■colleges and universities defined 268 institutions maintaining academic standard 268 regents' diploma 269 law student certificate, how secured 269 communications as to, how addressed 275 regents' studies specified 271, 275 order of studies 273 itime limit las to examinations 273 duplicate credentials, fee for 273 Instructions of, to law students: extra credentials, fee for 273 instructions to candidates 274 communications, how to be addressed 275 suhjects of examinations 295 times and places of examinations 277 REGISTRATION OF ATTORNEYS: Form of oath or affirmation 259 filing with clerk of Court of Appeals 259 fee for filing 261 Method of registration in clerk's office 260 Practicing without registration a- misdemeanor 230 REMITTITUR: Contents of 174 Takes judgment to court below for enforcement 175 In criminal causes 202 Mode of enforcement 175 And see Restitution. When should issue 180 Action on, in court below 181 ■Staying filing of, and proceedings on 199, 200. 205 Order entered on, after filing 181 omission to enter, may be amended 182 must conform to remittitur 182 Adjustment and insertion of costs 184 Neglect to file 181 What is not a filing 181 On order dismissing appeal 25 On dismissal for failure to serve case 109 On dismissal on call of calendar 173 On dismissal on stipulation 173 On affirmance by default 203 notice required 203 proof of service x>f notice to be filed 203 object of rule requiring notice 203 Index. 315 REMITTITUR— (Continued) : page. Jurisdiction transferred hj, when 203 No action in Court of Appeals until returned 19fi Return of, for purposes of motion 108, 109, 173, 196 when will be requested 196 return of, by court below 109, 196 judgment not affected by mere return 199 Amendment of 200 of record below, as indicated by 20O Is evidence of regularity of appeal 201 Practice of clerk's oflSce as to 109, 173, 201 Fee for 202 REPORTER. See State Repobtee. RESERVATION OF CAUSES: 'By court ; grounds for 146 By stipulation of parties 147 not after cause on day calendar 147 ■priority according to time of filing stipulation 143 default in stipulated causes 146 effect of stipulation 147 court not in session on day stiipulated 148 new calendar, effect of, on stipulations 143 RESTITUTION: When awarded 177 To what court application made 189 When new trial is directed) 191 Of costs 190, 191, 192 Of possession of real estate 191 when reconveyance not necessary 192 rents and profits ; mesne profits 192 provision in order of, not in decision 192 Property must have been taken under judgment reversed 193 Directed to a receiver of party • ] 93 In quo warranto 193 In attachment suits 193 When effected by execution 194 when by proceedings for contemlpit 194 Notice to party affected 194 Provisions of Code as to, not exclusive 194 RETURN: Of what should consist 11 Under § 1339 of Code Civ. Pro 14, 18 In criminal causes 28, 34 Same paipers as in court below ' . 17 Certifioation or stipulation papers are copies 14 statutory provisions as to 15 Appellant to file 11 310 Index. RETURN — ( Continued ) : page. When must be filed 11, 12, 21 Practice of clerk's office as to filing 27 Fee for filing 27 Filed, to await order for new calendar 27 Failure to file 11 ^notice to file 11 affidavit of failure to file 11, 28, 29 dismissal of appeal, on failure to file 11, 28 in criminal causes 28 certificate and order ; fees for 11, 28 ofpening default 26 Defective return: when further return ordered 86 affidavit and notice required 86 amendment or dismissal of appeal 86 remedy for by motion 26 Amendments : jurisdiction of court below to make 19, 90, 91 become part of original return 19 tiy general term, to show reversal on .f aots 89, 90 resettlement of case 88 Omissions from ■. 19, 20 ■(Vhen appellant cannot complaiin of 20 Improper insertions 21, 87 Record evidence not in, when considei'ed 93 Remitting to court below for amendment 90 And see Amendments. REVIEW of facts in capital! coses 142, 146 REVOCATION OF ORDERS: Inherent power of courts 206 By one of the j udges 205 RULES OF COURT: Force of 2 Relief from failure to comply with 2 Distinction between mandatory and directory provisions 2 When conflict with Code 2 Construction of statutes by 2 Court may disregard, when 2 Object of 3 Custom of courts 4 Effect of revision of, on pre-existing practice 3 Amendments of ; construction 4 RULES OF COURT OF APPEALS: Authority to nmke and amend 1, 217 How promulgated 1 Former rviles and revisions 4 Index. 317 RULES OF COURT OF APPEALS— (Continued) : page. Adoption of present rules 1 lo Amendments of 1906 7, g Practice rules; changes in g_10 pre-existing 3 table showing changes in numbers 6 Practice, when Code rules silent 3 Rules for 'admjission of attorneys ; changes in 7 And see Admission of Attorneys. Rules relating to official examiners of title 289 RULES, GENERAL. OF PRACTICE: I. Admission of attorneys 257 RULES OF STATE BOARD OF LAW EXAMINERS: I. Application for examination 286 II. Qualifications of applicants 286 III- Proof as to college or university 287 IV. Papers filed on application 287 V. Proof of practice in another State 288 VI. Subjects of examination 288 RULES RELATING TO OFFICIAL EXAMINERS OF TITLE 289, 293 SESSIONS OF COURT: Sessions or terms, and recesses 207 Daily sessions, hours of 160 SLANDER: Actions for, entitled to preference on calendar 165 SPECIAL PROCEEDINGS: Appeals from orders finally determining 29, 35, 14S Certain orders classified 29, 30 Orders in contempt proceedings 40 STATE BOARD OF LAW EXAMINERS: Creation of 8,217 Duties of 8, 217, 264 Members of; their number and qualifications 217, 255 appointment and terms of office 218, 254 compensation 217, 254 names and residences 255 Allowance for disbursements 254 Rules adopted by 286 Secretary and treasurer; his office address 235 application and • papers to be filed with 251 Examinations for admission to be held by 217, 254 form of 254 scope of 255 to be held in each judicial department 218 , papers to be filed by applicants 231, 247 348 Index. STATE BOARD OF LAW EXAMINERS — (Continued) : page. Prerequisites to examination by 231 proof of citizenship, age, etc 231 proof of having studied law 231 proof of fulfilment of preliminary conditions 247 proof to be filed with secretary 251 applicant's affidavit of age, etc 231, 251 college diploma and regents' certificate 231 copy of regents' law student certificate 236, 242, 248 copy of certificate of commencement of clerkship 234, 247 affidavit of service of clerkship 247, 251, 284 proof of certificate of attendance at law school 248 affidavit of attendance at law school 248 certificate of admission elsewhere 247, 286, 287 copies of nunc pro tunc orders 253 lost or withheld certificate, how supplied 248 certificates under former rules 249 rules of board, as to submission of papers: application for examination 286 requisites of application 286 time of filing papers 286 how papers must be entitled 287 where papers to be sent 251 Examination fee, time of payment 286 And see Admission or Attorneys; Sdpeeme Couet. Rules of, relative to official examiners of title 293 STATE REPORTER: Opinions delivered to 202 Requests for copies should be addressed to 202 STAY OF PROCEEDINGS: By any one of the judges 204 Order for, how served 204 On remittitur 199, 204, 214, STIPULATION: In place of certification of return 14, 25 practice of clerk's office in reference to 27 For order of substitution 101 For reservation of causes : to be filed with clerk 146 must be filed before cause placed on day calendar 146 priority, according to time of filing 147 default in stipulated causes 147 elTect of stipulation 147 court not in session on day stipulated ]4S vacated by new calendar 148 For exchange of causes 158 must be filed Iwfore cause placed on day calendar 159 effect of, on subsequent calendars 158, 209 Index. 319 STIPULATION— (Continued): , pagb. For dismissal of appeal 174 practice of clerk's office on 173 order and remittitur 174 ^ STUDENTS AT LAW. See Admission op Attoenets; Law Schools; Regents or the Univebsity; State Board of Law Examiners; Supreme Court. STUDY OF LAW: Periods of, preparatory to examination 231 How may be pursued 236 Attendance at law school 235, 237 Service of office clerkship 235, 237 Duplication of time 246 Vacations 238, 243, 246 And see Admission op Attorneys; State Board of Law Examiners. SUBMISSION OF CAUSES: Without oral argument, when reached on call 14fi May be by one party or both 147 To judges absent from argument 118 SUBSTITUTION: Of attorneys 95, 96, 98, 99, 100 proceedings on death or disability of attorney 96 order of substitution 95, 96 Of parties on appeal 97 order of substitution 98 practice of clerk's office as to 101 SUPREME COURT: Judge of, cannot extend time to file return 26 except in cases under § 1339 of Code 26 Appellate Division of: admission and licensing of attorneys by 226-230 without examination 226 on examination by Board of Examiners 229 residence in department, prior to admission 256 refusal of admission by, when reviewable 230 may revoke license, for fraud 219, 221 control of over attorneys 221 And see Admission of Attorneys ; State Board of Law Examinees. TERMS OF COURT. See Court of Appeals ; Sessions of Couet. TIME: Enlarging, by court or a judge 204 When appeal perfected 13, 21 When jurisdiction of Court of Appeals attaches 24 when ceases 195, 202 320 Index. 'ilME — (Continued) : page. To file return H extension of 25 Of notice to file return 11 To transmit return in criminal cause 28 Of notice of motion to dismiss criminal appeal 28, 148 Of stay, on death of attorney 96 Of order to show cause, on death of party to appeal 98 To serve copies of case 107 To file copies of case 110 To serve copies of points 110 To furnish cases and points in appeals from orders 158 Of notice of argument in criminal cause 145 Of notice of motion 157 Of notice of argument of appeal from order 157 Of notice of argument for new calendar 209 When new calendar made up 209 When day calendar made up 159 Allowed on argument of a cause 160 Allowed on argument of api)eal within Rule XI 160 When decisions handed down and remittiturs made out 201 When remittitur issues on affirmance by default 203 Of sessions and recesses of court 207 Of daily sessions of court WO Of law study for admission as attorney 231 how computed 237 duplication of 237, 246 For passing regents' examination ^ . . . . 235 Of holding regents' examinations 275, 276 To file regents' certilcate 235, 236, 241 To file clerkship certificate 237 To file proofs, for examination of State Board of Law Examiners. . . 286 To pay examination fee 286 Of registration of attorney 258 UNDERTAKING: Essential to perfect appeal 13, 21 Surety's liability limited to costs of appeal 22 Jurisdiction of Covirt of Appeals attaches on giving 24 after death of adverse party 98 enures to person substituted 98 Motions in reference to 150 UNIVERSITY OF STATE OF NEW YORK. See Regents of the Uki- VEBSITY. VACATIONS: In service of clerkships 23S. 243 In attendance at law school 238, 246 Htf^r'-^l — r -'^