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been held to be motions : Application for a commission (Erwin v. Voorhies, 26 Barb. 127 ; 13 How. 130); an appeal pursuant to $ 349 (Savage v. Darroi, 2 Code R. 57); an application pursuant to $ 247 (Roberts v. Clarke, 10 How, 415; Gould v. Carpenter, 7 id. 99); an application for a mandamus against public officers (The People v. Supero. of Schuyler, 2 Abb. N. S. 78). But the application to have costs of appeal from a surrogate's decree taxed is not a motion (Brockway v. Jewett, 16 Barb, 590; and see Boune v. Anthony, 13 How. 301).

Note to subdivision 2. a. This applies to all motions, except the one excepted,

li therefore an order for the appointment of a guardian in partition, may be made by a judge at chambers" (Disbrow v. Folger, 5 Abb. 54; and see ante, p. 27, d).

Note to subdivision 3. b. The term “ the court” means the court in which the action is pending (Mann v. Tyler, 6 How. 236). A county judge may make an order, staying proceedings on a judgment on the

report of a referee. A report of a referee is not a verdict (Otis v. Spencer, 8 How. 171).

Note to subdivision 4. c. Motion, where to be made.-In order to authorize the court to hear a motion it is not necessary to show that it is made in the proper county. If not thus made, that fact can be shown in opposition to the motion, or it may furnish ground for vacating any order taken by default on such motion, and perhaps any order on such motion would be void (Newcombe v. Reed, 14 How. 100; see, however, as to the order being void, Blackmar v. Van Inwager, 5 id. 367; Geller v. Hoyt. 7 id. 265).

d. The county in which an action is triable, is the county in which the venue is laid, that is, the county named as place of trial in the complaint (Gould v. Chapin, 4 How. 185; Canal B’k v. Harris, 1 Abb. 192). The word triable applies only to the county named as the place of trial (Bangs v. Selden, 13 How. 163). Thus where the plaintiff and defendant reside in different counties not adjoining, and in different judicial districts not adjoining, and the plaintiff names the county of his residence as the place of trial, that is the county in which the action is triable, until the place of trial is changed by an order of the court (id. ; 8. C. id. 374; Askins v. Hearns, 3 Abb. 184; Chubuck v. Morrison, 6 How. 367).

e. Where no copy of the complaint has been served, and no complaint has been filed, the defendant, for the purpose of moving, is at liberty to regard the county in which the summons states the complaint will be filed, as the county in which the action is triable (Johnson v. Bryan, 1 Code Rep. N. S. 46; Davison v. Powell, 13 How. 287). And semble, where no place of trial is named in the complaint, the motion may be made in any district within which the action is properly triable (Hotchkiss v. Crocker, 15 How. 336).

f. Erie county -Actions triable in Erie county require all motions in relation to them to be made in the 8th district, as there are no counties out of that district adjoining Erie (Inglehart v, Johnson, 6 How. 80).

g. Orleans county.-All motions in the supreme court, and all suits and proceedings in equity in said court, arising in the county of Orleans, may be brought to a hearing at any special or general term of said court in the county of Erie, in the same manner as though the said county of Erie was adjoining the said county of Orleans (Laws of 1848, ch. 35, p. 47).

h. First district.—The special or general terms of the supreme court, in the first judicial district, have no jurisdiction to hear a motion [upon notice] in an action triable in another district (Harris v. Clark, 10 How. 415 ; Canal Bank v. Harris, id. 452 ; 19 Barb. 587; Wheeler v. Maitland, 12 How. 35). An application for an order of supersedeas (under 2 R. S. 556, $$ 36, 37) may be made to the judge of the first district, although the action is triable elsewhere

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(Wells v. Jones, 2 Abb. 20). It is not a case governed by section 401 (id.; and see Weed v. Sturgis, 13 How. 130; Cunningham v. Widing, 5 Abb. 413).

Note to subdivision 6. a. Stay of proceedings.-No judge has the right, arbitrarily, to make an ex parte order staying proceedings in an action for a given period, or twenty days (Mills v. Thursby, 11 How. 114). The stay should always be until the party obtaining it can make some other application for relief (Chubbruck v. Morrison, 6 Xow. 367; see Sales v. Woodin, 8 How. 350); whether the stay exceeding the time limited be granted by a single order or by successive orders, is immaterial, in either case the stay is irregular (Anon. 5 Sand. 656 ; Marvin v. Lewis, 12 Abb. 482).

b. An order extending the time to make a case or exceptions, is not per se a stay of proceedings, and this clause of the section does not apply to such an order (Thompson v. Blanchard, 1 Code Rep. 105; Huff v. Bennett

, 2 ib. 139; Adams v. Sage, 13 How. 18; and see Salls v. Butler, 27 How. 133).

c. An order extending the time to answer was held not to be a stay of proceedings (Wilcock v. Curtis, 1 Code Rep. 96 ; Sisson v. Lawrence, 16 Abb. 259, note; 25 How. 435); and therefore a county judge may, by an ex parte order, extend the time to answer more than twenty days (id.)

d. An order of a judge staying proceedings cannot be treated as a nullity on the ground that it was improvidently granted, or improperly or fraudulently obtained (Harris v. Clark, 10 How. 416). The proper remedy is to move to have it vacated (Hempstead v. Hempstead, 7 id. 8; Wood v. Kimball

, 9 Abb. 419; 18 How. 163). On motion to vacate an ex parte order granting a stay for more than twenty days, the court may order a stay (Clumpha v. Whiting, 10 Abb. 448).

e. Where an order is obtained staying plaintiff's proceedings pending a motion, the defendant is entitled to the whole of the day on which the motion is disposed of for taking the next step in the cause, although, pending the stay, his time to take such step may have expired (see Vernon v. Hodgkinson, 3 Cr. M. & R. 151; 1 Tyrw. &Gr. 427; 4 Dowl. 665). Where there is a stay of proceedings until the decision of a motion, and on deciding the motion the stay is ordered to be continued, the opposite party cannot take any step intermediate the decision and the service of the order (Warren v. Wendell, 13 Abb. 187).

Note to subdivision 7. f. Application for order.-To authorize the granting an order under this subdivision, it must appear by competent proof, (1) that the applicant intends to make or oppose a motion; (2) that it is necessary, in making or opposing such motion, to have the deposition of some person who refuses to make a voluntary affidavit. Usually the affidavit of the attorney is sufficient proof of these matters. Where it appears either that no motion is to be made or opposed, or if a motion is to be made or opposed, it is not such a motion as to require the deposition of any witness, e. 9., a motion to make a pleading definite or certain, the order will not be granted, or if granted, will, on the facts being shown, be vacated (Moses v. Banker, 7 Rob. 131). The order for taking the examination of a witness can be made only upon proof that the affidavit of the witness is necessary (Fisk v. Chicago R. Ř. Co. 3 Abb. N. S. 430).

g. After a person has made a voluntary affidavit, semble, no order should be made for his oral examination (Ryers v. Hedges, 1 Hill, 646).

h. Ordinarily, the proper course where an affidavit is desired, is, prior to making a motion for an order, to draft an affidavit and submit it to the witness to be verified. The objection that no affidavit has been prepared and submitted may be waived, and it is waived if, when asked to make an affidavit, the witness does not require a draft to be submitted, but makes a general refusal to testify (Fisk v. Chicago R. R. Co. 3 Abb. N. S. 430). After a witness has refused to make an affidavit, and an order for his examination has been


made, he is not entitled to have the order vacated by subsequently tendering an affidavit, but if the affidavit is full and frank, the court may vacate the order (id.)

a. Examination of party to action.-In Fisk v. Chicago R. R. Co. 3 Abb. N. S. 430, Cardozo, J., held that a party to the action could be ordered to make a deposition under this subdivision; but the reverse was held by Barrett, J., in Hodgkin v. Atlantic R. R. Co. 5 Abb. N. S. 73. The power to order a party to make a deposition on a motion did not exist prior to the code (Palmer v. Adams, 22 How. 375; and see Meyer v. Lent, 7 Abb. 225; and infra in this note).

6. Ex parte.-The order may be applied for ex parte (Brooks v. Schultz, 5 Rob. 556 ; 3 Abb. N. S. 124).

6. Notice.—No notice of obtaining the order need be given to the adFerse party in the action; he is not entitled to take part in the examination (Erie R. Ř. Co. v. Champlain, 35 How. 73, Balcomb, J.; see opinion of Robertson, J. 3 Abb. N. S. 125; and of Barbour, J. 5 Rob. 657).

d. The examination. A "fishing examination is not allowable (Fisk v. Chicago R. R. Co. 3 Abb. N. S. 430); but the witness must answer all proper questions; on his refusal to answer he may be punished as for a coritempt (Clark v. Brooks, 26 How. 254). No examination of books and papers is allowable (Fisk v. Chicago R’way Co. supra). A party refusing to be examined is not alone a sufficient ground for deciding the motion against him (Meyer v. Lent, 7 Abb. 225).

. Setting aside order.-One whose deposition has been ordered to be taken, pursuant to this subdivision, may move to set aside the order for his examination; but the party to the action, adverse to the party who obtained the order, cannot move to set it aside (Ramsey v. Goul 39 Ilow. 62). After attending, being sworn, and partially examined, the witness cannot move to set aside the order for his examination (Erie R. R. Co. y. Champlain, 35 How. 74).

f. Revised statutes. The revised statutes provide : when there shall be a motion or other proceeding in the supreme court, in which it shall be necessary for either party to have the deposition of any witness who shall have refused voluntarily to make his deposition, the court may direct a commission to be issued to one or more persons, inhabitants of the county in which such witness resides, to take his testimony. Such witness may be subpænaed to attend and testify before such commissioners, in the same manner as before referees, and with the like effect; and obedience to such subpæna shall be enforced in the same manner (2 R. S. 554, SS 24, 25). On a motion to vacate an arrest, the court refused the plaintiff's application for a commission to examine, as witnesses on the motion, two of the defendants who were out of the State (Huelin v. Ridner, 6 Abb. 19; Stake v. Andre, 9 Abb. 420; 18 How. 159; and see Palmer v. Adams, 22 How. 375).


$ 402. (Am'd 1849.) Notice of motion.

When a notice of a motion is necessary, it must be served eight days before the time appointed for the hearing ; but the court or judge may, by an order to show cause, prescribe a shorter time.

9. Motions to be on notice. All motions are to be on notice, or order to show cause (Rule 39). But an application to the court to remove a mere technical difficulty, by which other parties cannot be affected, may be made ex parte (Re Patterson, 4 How. 34).

h. A notice of less than eight days is, in the absence of an order to show cause, irregular (Rogers v. McElhone, 12 Abb. 292 ; 20 How.441); the objection to the length of the notice must be made on the hearing of the motion ; it cannot be insisted upon for the first time on appeal (16 How. 271).

a. The granting an order to show cause is not a matter of course (Androrette v. Bonone, 15 How. 75; 4 Abb. 440), and an order to show cause within less than eight days cannot properly be made, unless some sufficient reason is shown (Springsteen v. Powers, 4 Rob. 624). An order returnable on a Sunday is void (Arctic Fire Ins. Co. v. Hicks, 7 Abb. 204). And, semble, so is an order made on a motion in the wrong county (Newcomb v. Reed, 14 How. 100; and see 13 id. 374; 5 id. 367; 10 How. 424).

b. Motions, except in the first district, are to be noticed for the first day of the term, and to be accompanied with copies of the affidavits, &c., on which the motion is to be made (Rule 49; 2 Code R. 67, 129).

c. The particular grounds of a motion should appear plainly, either by the notice of motion or the affidavits (Ellis v. Jones, 6 How. 296; and see Rule 39). This section gives no authority to shorten the notice of a motion, pursuant to section 247 (Lefferts v Sneiliker, 1 Abb. 41). See $$ 412, 413, Supreme Court Rule 49.

Some points on motions. d. All objections in one motion.-A party complaining of any proceeding in a cause must embody all objections, then existing, in one motion; he cannot make a separate motion for each objection. Thus, when a plaintiff moved to set aside a demurrer as irregular, and failing in that, moved to set aside the demurrer as frivolous,-held, that the second motion could not be entertained (Desmond v. Wolf, 1 Code Rep. 49; Pattison v. Bucon, 12 Abb. 142 ; 21 How. 478; and see Schlemmer v. Myerstein, 19 How. 412; Mills v. Thurslry, 11 How. 115).

e. Papers on a motion.—Copies of all papers upon which the motion is intended to be made should be served on the opposite party (Rule 49), but when a motion is to be heard on the pleadings it is not necessary to serve a copy of such pleadings (Newbury v. Newbury, 6 How. 182). Copies of pleadings served on the adverse party should be perfect copies, including sig. natures, jurat, &c., and the party served has a right to presume that the copy pleading served is a correct copy. But where the original is correct and the copy defective, the party serving the copy may be allowed to serve an amended copy on payment of costs occasioned by the irregularity (Littlejohn v. Munn, 3 Paige, 200). Where papers have been served for a motion, and that motion is abandoned, the moving party may serve a fresh notice, stating therein that the motion will be made on the papers already served, intelligibly referring to them, and in that case such papers may be read on the second motion (Van Benthuysen v. Stevens, 14 How. 70), and although a party making a motion is not ordinarily allowed to read affidavits in support of his motion, copies of which have not been served, yet in cases where affidavits read in opposing a motion, introduce new matter which may operate as a surprise upon the moving party, he is sometimes allowed to have the motion stand over for the purpose of ob. taining affidavits to contradict or explain the new matter alleged, especially when the new matter charges the moving party with bad faith (Schermerhorn v. Van Vorst, 1 Code Rep. N. S. 400).

f. Right to begin on motion.-When a motion is brought before the court upon an order to show cause, the order is regarded as a notice of motion, and the party obtaining it is entitled to open and close the argument (N. Y. & Harlem R. R. Co. v. Commissioners of Metropolitan Police, 1 Hilton, 562).

g. Preliminary objection.-If it is intended to take any objections to a motion of a merely technical character, they should be raised before the merits of the motion are gone into; otherwise they will be considered as waived (3 Caines' R. 105; 16 How. 271).

h. Extent of relief on motion.—Where a party, in his notice of motion served on the adverse party, asks for a specific relief, or for such other or further order as may be just, the court may afford any relief compatible with the facts of the case presented (The People v. Turner, 1 Cal. R. 152).

Where the notice of motion was to dissolve the injunction, “and for other and further relief," &c., and the motion was denied at special term, the general term, on appeal, ordered a new defendant to be joined in the action, and it was held that such order was authorized by the prayer for other relief (Martin v. Kanouse, 2 Abb. 390 ; and see Mann v. Brooks, 7 How. 457). It is irregular to grant affirmative relief to a party opposing a motion, upon matters appearing in the opposing papers, which the moving party has no opportunity to answer (Garcie v. Sheldon, 3 Barb. 232). On a motion, the court

may grant the application in part and deny it in part (De Santes v. Searle, 11 How. 477).

a. Facts occurring pending a motion, held not to control the decision of the motion (Rigney v. Tallmadge, 17 How. 556).

b. Amending moving papers.-An opposing party is sometimes allowed to amend a defect in his proceedings, without being put to a motion on his part. But this may be allowed only in cases where the court can see, from the nature of the case, that no valid objection can be made to the amendment in case a motion is specially made for that purpose (ib.) And where, after a motion had been heard and decided, it appeared that the affidavit used to oppose did not contain any jurat or signature of any officer before whom sworn, leave was granted to the party to reswear the affidavit (8 How. 187, note).

c. Entitling order.— The entitling an order as granted at a special term, which by law may be made by a judge out of court only, or the making such order by a judge when sitting at a special term, instead of when sitting at chambers, will not vitiate the order (In the matter of the Knickerbocker Bank, 19 Barb. 602; and see Dresser v. Van Pelt, 15 How. 19, and 5 Abb. 53; 10 How. 425).

d. Order by default.-Where a motion is noticed for a day out of an appointed term, must be brought on on the day specified. And where the moving party does not appear on that day, he is not entitled to his motion by default on a subsequent day (Vernpoy v. Tauney, 3 How. 360; see $ 404). If no one appears to oppose, on proof of due service of notice of the motion, the moving party is entitled to the order asked for (Rules 39, 55), but no more than is asked for (Anderson v. Johnson, 1 Sand, 713 ; 1 Code Rep. 95). Thus, if the notice of motion does not state that costs will be asked for, but that the party will apply “ for such other and further order as the court may deem proper," it would be deemed irregular to take by default an order for the relief asked for with costs (Northrup v. Van Deusen, 3 Code Rep. 140; 5 How. 134). And in the court of appeals, an order will not be permitted to be taken by default, which interferes with the power of the court in controlling the calendar (Crain v. Rowley, 4 How. 79). And even if no one appears to oppose, yet if the service or proof of service is sufficient, the court will deny the motion (3 Caines' R. 88).

e. Entry of order.--It is the clerk's duty to enter orders without any specific direction; if he fails to enter an order the suitor is not to be prejudiced thereby (The People v. Cent. City B'k, 53 Barb. 412); see ante, p. 262, e). But neither party can have any benefit from a decision of the court until the order upon such decision is drawn up and entered. And it is the duty of the prevailing party to see that the order conforms to the decision (Savage v. Relyea, 3 How. 276; La Farge v. Van Wagenen, 14 How. 57). The order should be dated as of the day it is actually entered. But where it is dated as of the day the decision was made, the party entering cannot afterwards object to it on that ground. If the party entitled to draw up the order neglects to enter it for twenty-four hours after the decision is made, any other party interested in the entry of the order, may enter it. Where an order is special in its provisions, the party entitled to draw up the same should submit a copy of the proposed order to the adverse party, so that he may propose amendments (Whitney v. Belden, 4 Paige, 140). [In the superior court of New York city, where an order is entered ex parte, and the opposite party is dissatisfied with it, he may, on a notice of two days, have a resettlement.] If


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