« PředchozíPokračovat »
the successful party does not enter the order, the unsuccessful party may do so, in order to appeal (Peet v. Cowenhoren, 14 Abb 56; and ante, p. 558, c, and § 350). The benefit of an order may be lost by omitting to enter it (see Rule 3).
a. Countermand.-A notice of motion cannot be so countermanded by the party who has given it, as to deprive the opposite party of the right of attending on the day specified, and having the motion dismissed with costs (Bates v. James, 1 Duer, 668). But where a notice of motion embraced two distinct matters, as for leave to add parties defendant, and for an injunction, one branch of the motion may be withdrawn, leaving the motion to proceed as to the other branch, without payment of costs Walkinshar v. Perzel, 7 Kob. 606).
b. Renewing motion.—A special motion may be renewed (Smith v. Spalding, 3 Rob. 615; Belmont v. Erie R. R. Co. 53 Barb. 637), but not without leave of the court for that purpose obtained (Mitchell v. Allen, 12 Wend. 290; Dollfus v. Frosch, 5 Hill, 493; Allen v. Gibbs, 12 Wend. 202; Willet v. Fayerweather, 1 Barb. 73; Bellinger v. Martindale, 8 How. 113; Boroman v. Sheldon, 5 Sand. 657; Cuzneau v. Bryant, 4 Abb. 402 ; Snyder v. White, 6 How. 321; Mills v. Thursby, 11 How. 114 ; Rule 23, and see ante, p. 322, e), unless there has been a change in the facts of the case since making the first motion (Belmont v. Erie R. R. Co. 53 Barb. 637). A party cannot, by omitting to enter the order, obtain a right to renew a motion (Peet v. Cowenhoren, 14 Abb. 56). It is discretionary with the court to allow a renewal of a motion, on the same or additional papers, and its decision will not be reviewed on appeal (White v. Munroe, 12 Abb. 357; Smith v. Spalding, 3 Rob. 615). A motion denied on a preliminary objection may be allowed to be renewed on the merits (Martin v. Lewis, 12 Abb. 482). But leave will not be given to renew a motion to enable a party to insist on facts known to him, but not insisted upon at the hearing of the original motion (Pattison v. Bacon, 12 Abb. 142; 21 How. 478; and see Schlemmer v. Myerstein, 19 How. 412; Looell v. Martin, 12 Abb. 178). The fact of an appeal having been taken from the first order, and being still pending, is not an answer, of itself, to a motion for leave to renew (Belmont v. Erie R. R. Co. supra). A motion for leave to renew will prevent the hearing of the appeal (Peel v. Elliott, 16 How. 483). The motion for leave to renew a motion at special term, need not be before the judge who decided the former motion (53 Barb. 637). A rehearing cannot be had on the same state of facts as those upon which the first motion was beard (Smith v. Spalding, 3 Rob. 615). A new motion made without leave 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 shown upon the second motion, such as would be ground for giving leave to renew (Butt8 y. Burnett, 6 Abb. N. S. 302). And, although a motion cannot regularly be renewed without leave, it is the practice to insert in one notice an intention to move for leave to renew, and to move for the relief desired (Fowler v. Huber, 7 Rob. 52). The court will not refuse leave to renew a motion merely because the costs of the former motion have not been paid, unless it appears that the party seeks to avoid payment, or is insolvent, and has no property out of which the costs can be collected (Adams v. Bush, 2 Abb. N. S. 113). Leave to renew is usually granted upon the denial of a motion for a defect in the moving papers (see Mitchell v. Allen, 12 Wend. 240; Dolfus v. Frosch, 5 Hill, 493; Wood v. Mitchell, 9 Abb. 419; Bellinger v. Martindale, 8 How. 113). Where leave to renew is granted, it should be so stated in the order (Dolfus v. Frosch, 5 Hill, 493)
c. Binding effect of order.-An order which is irregular, but not void, is binding until set aside (Blackmar v. Inuager, 5 How. 367) The decision of a motion is not res judicata (Smith v. Spalding, 3 Rob. 615; Belmont v. Erie R. R. Co. 53 Barb. 637). The order binds only parties and privies. When made on a summary application in an action, it is not conclusive upon a person not a party to the action, although he has appeared, and opposed the granting the order (Acker v. Ledyard, 8 Barb. 815; see Clarke's Case, 15 Abb. 227).
a. Objection to complaint on motion. The court will not, as a general rule, on an interlocutory motion made by the plaintiff after issue joined, consider the objection that the complaint does not state facts sufficient to constitute a cause of action (Banks v. Maher, 2 Bosw. 691).
b. Impeaching a deponent on a motion. The character of the deponent in an affidavit used on a motion may be impeached, by affidavit, but the opposite party should be afforded an opportunity to rebut such impeachment (see Francis v. Church, Clarke, 475; Merritt v. Baker, 11 How. 456; Clarke v. Frost, 3 Cai. 125; and contra, Callen v. Kearny, 2 Cow. 529).
c. Death of party pending a motion. If a party dies pending a motion, the decision of which will not finally determine the action, an order of revival must be had before the decision of such motion can be entered (Reed v. Butler, 11 Abb. 128).
§ 403. In actions in the supreme court, county judge may act at chambers. His orders, how reviewed.
In an action in the supreme court, a county judge, in addition to the powers conferred upon him by this act, may exercise, within his county, the powers of a judge of the supreme court at chambers, according to the existing practice, except as otherwise provided in this act. And in all cases where an order is made by a county judge, it may be reviewed in the same manner as if it had been made by a judge of the supreme court.
d. Every county judge within the county in which he shall have been elected, shall have power, and it shall be his duty, to perform all such duties, and to do all such acts, when not holding a county court, as might have been done or performed, by the laws in force on the 12th of May, 1847, by the judges of the common pleas, or by any one or more of them, at chambers or otherwise, when not holding court, or by any such judge being of the degree of counsellor of the supreme court, and acting as a supreme court commis. sioner (2 R. S. Laws of 1847, ch. 470 $ 27).
e. Where the place of trial mentioned in the complaint was the city and county of New York, and a county judge of the county of Kings had granted an injunction order, on motion to vacate such order the court said : " Section 218 says, the order may be made by 'a' county judge, using the indefinite article; and section 403 defines what county judge is intended; and from that it appears it must be a county judge of the county in which the action is tri. able; that being so, the injunction order in this case is a nullity” (Eddy v. Horolett, 2 Code Rep. 76; and see Chubbuck v. Morrison, 6 How. 367).
f. Where a county judge makes an order in an action pending in the supreme court, he acts as a justice of that court at chambers, and his orders are to be reviewed in the same manner as an order at chambers (Conklin v. Dutcher, 5 How. 386).
$ 404. (Am'd 1849.) In absence, &c., of judge at chambers, motion may be transferred to another judge.
When notice of a motion is given, or an order to show cause is returnable before a judge out of court, and at the time fixed for the motion he is absent or unable to hear it, the same may
be transferred, by his order, to some other judge, before whom the motion might originally have been made.
a." In the first district, all motions noticed for hearing at chambers, not heard on the day for which they are noticed, in consequence of the inability of the court to hear the same, stand over, as a matter of course, until the next day, unless a different disposition should be made by the direction of the judge, or the consent of parties (Mathis v. Vail, 10 How. 458).
6. In case of the death, sickness, resignation, or removal from office, absence from the county of his residence, or other disability of any officer before whom any special proceeding authorized by any statute may have been commenced, and where no express provision is made by law for the continuance of such proceedings, the same may be continued by the successor in office of such officer, or by any other officer, residing in the same county, who might have originally instituted such proceedings; or if there be no such officer, then by the nearest public officer in any other county who might have originally had jurisdiction of the subject-matter of such proceedings, if such matter had occurred or existed in his own county (2 R. S. 284, § 51 ; see Cobb v. Harmon, 23 N. Y. 155; ante, p. 28 a.)
$ 405. (Am'd 1849.) Enlarging time for proceedings in an action.
The time within which any proceeding in an action must be had, after its commencement, except the time within which an appeal must be taken, may be enlarged, upon an affidavit showing grounds therefor, by a judge of the court, or, if the action be in the supreme court, by a county judge. The affidavit, or a copy thereof, must be served, with a copy of the order, or the order may be disregarded.
c. This section relates to the powers of a judge at chambers, and has no application to the powers of the court (Marvin, J. Haase v. N. Y. Cent. R. R. Co. 14 How. 430; Traver v. Silvernail, 2 Code Rep. 97).
d. Where an act is to be done within a certain time, in which the concurrence of the court is necessary, and a party has done all that he is required to do to obtain the decision of the court, he is not to suffer through the court's delay; and if the court gives a decision after the time for doing the act is passed, the decision may be entered up as of the time when by law it ought to have been given (Clapp v. Graves, 9 Abb. 20; ante, p. 260, e.)
e. Time to make a case.-A judge at chambers cannot extend the time to make a case after the ten days have expired. The party must apply to the court, on notice (Doty v. Brown, 3 How. 375; Sheldon v. food, 14 How. 18).
f. Serving copy affidavit.-The provision in this section requiring the affidavit on which the order is made, or a copy thereof, to be served with a copy of the order, relates only to orders granted in actions enlarging the time within which any proceeding may be had, and does not, therefore, apply to an order under section 292 (Green v. Bullard, 8 How. 315). Where a party by mistake omits to serve his opponent with the copy order, or a copy of the affidavit on which the order was granted, he is entitled to relief on terms (Quinn v. Case, 2 Hilton, 470).
g. Copy affidavit.—The copy affidavit should include the signature and jurats (3 Paige, 280); but it seems that omitting to include a copy of the jurat in the copy of affidavit served, does not render the proceedings irregular (Graham v. McCoun, 5 How. 353; Barker v. Cook, 16 Abb. 83 ; 40 Barb. 254).
See Rule 22,
$ 406. Affidavits defectively entitled.
It shall not be necessary to entitle an affidavit in the action, but an affidavit made without a title, or with a defective title, shall be as valid and effectual for every purpose, as if it were duly entitled, if it intelligibly refer to the action or proceeding in which it is made.
a. Where an affidavit was entitled supreme court, instead of court of appeals, the court of appeals held it to be defective (Clickman v. Clickman, 1 N. Y. 611).
6. An affidavit entitled in the “county court,” for a motion for retaxation of costs, &c., in proceedings for “ forcible entry and detainer,” commenced before a county judge, and brought into the supreme court by certiorari, comes within this section and is sufficient (People v. Toronsend, 6 How. 178).
c. On a motion to vacate an order, where the affidavits intelligibly refer to the action, an objection that the affidavits are entitled in the wrong court will be disregarded (Blake v. Locy, 6 How. 108).
d. The entitling an affidavit, made before the action is commenced, in a suit (which under the former practice was fatal), may now be disregarded, under sec. 176 of the code, as not affecting the substantial rights of the adverse party (Pindar v. Black, 4 How. 95; see City B'k v. Lumley, 28 How. 397).
e. This section does not apply to a notice of motion (1 Code Rep. 98), nor to proceedings on mandamus (The People v. Dikeman, 7 How. 124).
f. The title of an affidavit embraces the name or style of the court, as well as the names of the parties. Hence an error in the name of the court, when it is certain that the opposite party has not been misled by it, is to be disregarded (Bouman v. Sheldon, 5 Sand. 657).
g. Where a deponent is a marksman, the fact of the affidavit having been read over to him, and his understanding it, should be stated in the jurat (Haynes v. Powell, 3 Dowl. Pra. Cas. 599).
k. Affidavits should contain a venue—a venue being an essential part of an affidavit (see Cook v. Staats, 18 Barb. 408), see ante, 262, a.
Computation of Time.
$ 407. Time, how computed.
The time within which an act is to be done, as herein provided, shall be computed by excluding the first day, and including the last. If the last day be Sunday, it shall be excluded.
a. In the computation of time, upon service of notice of trial (except when the service is by mail, see $ 412), the day of service is excluded, and the first day of term is included. This section «stablishes a general rule in such a case, notwithstanding the language in § 256 (Easton v. Chamberlain, 3 How. 412; Dayton v. McIntyre, 5 How. 117 ; Bissell v. Bissell, 11 Barb. 96).
6. A notice served on the 14th for the 16th, is a notice of two days ( Ball v. Mander, 19 How. 468; Columbia Turnpike Roal v. Haywood, 10 Wend. 422). Where an order was entered on 27th of May, and notice of appeal was served on 27th June,-held to be in time, that is, within 30 days (Gallt v. Finch, 26 How. 193). A five days' notice served on Wednesday for the following Monday, is a good five days' notice. The int-rvening Sunday cannot be excluded (Taylor v. Corbiere, 8 How. 385; Easton v. Chamberlain, 3 How. 412; King v. Dowdall, 2 Sand. 131; see ante, p. 504, c). Where the last day falls on Sunday, the day following is the last day of limitation (Taylor v. Corbiere, 8 How. 385). Where an act is to be done after the expiration of thirty days, it cannot be performed until the 31st day (Judd v. Fulton, 4 How. 298).
c. As to computing time (see Phelan v. Douglass, 11 How. 193; Pulling v. The People, 8 Barb. 381; The People v. N. Y. Cent. R. R. Co. 28 Barb. 284); and as to not including Sunday in the computation when it is the last day (see Campbell v. Internat. Life Ass. Soc. 4 Bosw. 298). Bills and notes falling due on Sunday, are payable on Monday, see Laws 1870, ch. 370.
d. Additional time.-An order granting additional time does not commence to run until the time thereby extended would have expired, had no order been made (Schenck v. McKie, 4 How. 247). Thus, where the time to answer would have expired on the 8th of October, and on the 1st of October an order was made, for twenty days additional time to answer, it was held that the time to answer was thereby extended until the 28th of October (ib.; see contra, Simpson v. Cooper, 2 Scott, 840).
e. As to computing time for publication of legal notices, see section 425.
Notices, and Filing and Service of Papers.
SECTION 408. Notices, &c., how served.
409. Service, how made.
$ 408. Notices, doc., how served.
Notices shall be in writing ; and notices and other papers may be served on the party or attorney, in the manner prescribed in the next three sections, where not otherwise provided by this act.