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actions triable in any such county may be noticed and brought on at the time of holding the circuit and special term in the county in which such actions are triable.
“A motion for a reference in an action.-held to be a nonenumerated motion " (Conway v. Hitchins, 9 Barb, 386). The motion for a new trial on the merits is not a nonenumerated motion (Ellsworth v. Gooding, 8 How. 4; Van Schaick v. Winne, ib. 7). “An appeal from an order appointing an administrator is a calendar clause " (Brockway v. Jewett, 16 Barb. 593).
See code, SS 400, 401. .
RULE 41.–Filing notes of issue. General term calendar. Date of issue.
Notes of issue for the general term shall be filed eight days before the commencement of the court at which the causes may be noticed. The clerk shall prepare a calendar for the general term,
. and 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 other cases as of the time when the question to be reviewed arose.
See 15 How. 225; and, as to Kings county, Laws 1859, ch. 212.
RULE 42.-Enumerated motions, how noticed. Papers to be furnished, and by whom.
Enumerated motions shall be noticed for the first day of term by either party
The papers to be furnished on such motions shall be a copy of the pleadings, when the question arises on the pleadings, or any part thereof, or of such parts only as relate to the question raised by the demurrer, a copy of the special verdict, return or other papers on which the question arises; and the party whose duty it is io furnish the papers shall serve a copy on the opposite party, except upon trial of issues of law, at least eight days before the time 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 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; provided, however, that in mortgage and partition cases, where the plaintiff's rights are not contested, no copies of pleadings need be furnished to the court.
The papers shall be furnished by the plaintiff when the question arises on special verdict, and by the party demurring in cases of demurrer, and in all other cases by the party making the motion.
8. Where the party whose duty it is to furnish the papers neglects to do so, the opposite party should move to have the cause struck from the calendar; he cannot raise the objection when the cause is called to be heard (Tounsend v. Wheeler, 4 Wend. 197.)
a. An appeal from an order of the county court granting a new trial, on the judge's minutes is an enumerated motion, and must be placed upon the calendar and brought on upon printed papers (Harper v. Allym, 3 Abb. N. S. 186).
b. Printing the papers on an appeal is for the benefit of the court, and is not to be dispensed with, except by its order (Wheeler v, Falconer, 7 Rob. 45).
RULE 43.-Papers to be furnished on appeal, and by whom. To be printed. Points to be served. Striking cause from calendar. Cases under $ 372.
When an appeal is noticed for a general term, in cases embraced in chapter 3 of title II. of the code, and of $ 348 of the code, the appellant shall furnish the papers for the court, which consist of a copy of the judgment-roll, together with a case, stating the time of the commencement of the suit, and of the service of the respective pleadings, the names of the original parties in full, the change of parties, if any has taken place pending the suit, to which shall be added the opinion of the court below, or an affidavit that no opinion in writing was given, or if given, that a copy could not be procured. At the commencement of the argument the appellant shall furnish a printed copy of the papers to each of the judges, together with a printed copy of the points on which he intends to rely, with a reference to the authorities which he intends to cite; and he shall also deliver to the attorney of the adverse party, at least eight days before the first day of the tern, three printed copies of the said papers. And at the commencement of the argument, each party shall serve upon his adversary a printed copy of his points and authorities on which he intends to rely. In case the appellant neglects so to furnish to the adverse party the said number of copies of the papers, the latter shall be entitled to move, on affidavit and notice of motion, for the earliest practicable day in term for hearing nonenumerated motions, that the cause be stricken from the calendar (whichever party may have noticed it for argument), and that judgment be rendered in his favor.
When a case is agreed upon by the parties, according to $ 372 of the code, the plaintiff'shall furnish the necessary papers for argument, duly printed as in cases of appeal.
RULE 44.- Appeal from surrogate's decision. Petition. Answer to petition. Order to answer petition. Guardian ad litem, how appointed. Order to deliver copy petition. Appellant to furnish papers.
On an appeal to this court from the order, sentence, or decree of a surrogate's court, the party appealing shall file a petition of appeal, addressed to this court, with the clerk of the county in which the order, sentence, or decree appealed from was made, within fifteen days after the appeal is entered in the court below,
or the appeal shall be considered as waived; and any party interested in the proceedings in the court below may thereupon apply to this court, ex parte, to dismiss the appeal with costs. The petition of appeal shall briefly state the general nature of the proceedings, and of the sentence, order, or decree appealed from, and shall specify the part or parts thereof complained of as erroneous; except where the whole sentence, order, or decree is alleged to be erroneous, in which case it shall be sufficient to state that the same and every part thereof is erroneous. And where the appeal is from a sentence or decree on the settlement of the accounts of an executor, administrator or guardian, if the appellant wishes to review the decision as to the allowance or rejection of any particular items of the account, such items shall be specified in the petition of appeal; or the allowance or disallowance of any such items shall not be considered a sufficient ground for reversing or modifying the sentence or decree appealed from. The respondent, in his answer to the petition of appeal in such cases, may also specify any items in the account, as to which he supposes the sentence or decree is erroneous as against him and in favor of the appellant. And upon the hearing of the parties upon such appeal, the sentence or decree may be modified as to any such items, in the same manner as if a cross-appeal had been brought by such respondent. The appellant may have an order of course, that the respondent in the petition of appeal answer the same within twenty days after the service of a copy of the petition of appeal and notice of the order, or that the appellant be heard ex parte. And where the respondent is an adult, upon filing an aftidavit of such service upon the attorney of the respondent, if he has appeared either in this court or in the court below by an attorney of this court, or upon the surrogate if he has not appeared by such attorney, and that no answer to the petition of appeal has been received, the appel
have an order of course that the appeal be heard ex parte as against such respondent. Where the respondent is a minor, if he does not procure a guardian ad litem, upon the appeal, to be appointed within twenty days after the filing of the petition of appeal, the appellant may apply to a justice of this court, ex parte, for the appointment of such guardian. And if the minor has appeared by his guardian ad litem in this court, the appellant may have an order of course that the guardian ad litem of the respondent answer the petition of appeal within twenty days after service of a copy thereof and notice of the order, or that an attachment issue against such guardian. When a petition of appeal is filed, if it has not been served on the adverse party, the respondent may have an order of course, that the appellant deliver a copy of the petition of appeal to the attorney, or to the guardian ad litem of the respondent, within ten days after the service of notice of such order, or that the appeal be dismissed; and if the same is not delivered within the time limited by such order, the respondent, up
on due notice to the adverse party, may apply at a special term to dismiss the appeal with costs. Upon the hearing of any such appeal as is referred to in this rule, it shall be the duty of the appelÎant to furnish the court with a copy of the petition of appeal, and of the answer thereto, if an answer has been received, and a copy of the proceedings below, including a copy of the appeal as entered.
a. The decree of a surrogate admitting a will to probate, not appealed from, is conclusive, and cannot be reviewed collaterally (Hill v. Burger, 10 How. 264; and see Merrell v. Dennison, 8 Abb. 401).
b. Who may appeal.-It seems that any person cited before the surrogate, and who is or may be in any way interested as heir, next of kin, devisee or legatee, may appeal (Re Sherman, 16 Abb. 397, note). A legatee named in a will, though not a party to the proceedings before the surrogate, may appeal from his decree refusing probate (Lewis v. Jones, 50 Barb. 645 ; and see Pruyn v. Brinkerhoff, 7 Abb. N. S. 400).
c. From an order of a surrogate appointing an administrator, separate appeals should not be brought by parties opposing such appointments, as next of kin, whose interests and rights are the same (Brockway v. Jewett, 16 Barb. 590).
d. Parties to the appeal.—The heirs-at-law, next of kin, and legatees of a decedent are necessary parties to an appeal from an order admitting a will to probate (Gilman v. Gilman, 35 Barb. 591).
e. Upon an appeal from an order or decree of a surrogate, all persons to whom sums are awarded by the surrogate, and who are therefore interested in sustaining his decree, should be made parties respondent to the petition of appeal, although they are not parties to the proceedings before the surrogate (Wilcox v. Smith, 26 Barb. 316).
f. Where there is a defect of parties, if no motion is made to stay or dismiss the appeal on that ground, and the omitted parties have neither taken an appeal themselves, nor applied to be made parties, the appellate court cannot reverse the decree appealed from, although they may deem it erroneous (Brown v. Evans, 34 Barb. 594).
9. Proceedings on death of the appellant (Renwick v. Cooper, 10 Paige, 304).
h. If any of the respondents are infants, a guardian, ad litem, must be appointed, and the order to show cause varied accordingly (Renwick v. Cooper, 10 Paige, 304).
i. Effect of appeal.--The effect of an appeal is to stay all proceedings before the surrogate pending the appeal (Hicks v. Hicks, 12 Barb. 322 ; Newhouse v. Gale, 5 Brad. Surrogates' Rep. 218).
j. Time for appealing.-An appeal from a decision of a surrogate, confirming the probate of a will, must be brought within thirty days after the making the decree (Williams v. Fitch, 15 Barb. 654). An appeal from a surrogate's decree of distribution must be taken in three months therefrom (Anthony v. Brouwer, 31 How. 128).
k. If the appeal is not taken within the time limited by statute (2 R. S. 608 to 611), the right of appeal is lost (Bronson v. Ward, 3 Paige, 189).
1. Petition of appeal.—The petition of appeal should name the persons intended to be made respondents, and should pray that they answer the petition (Kellett v. Rathbrun, 4 Paige, 102). It should be entitled in the appeal (Gardner v. Gardner, 5 Paige, 170); and all parties to the proceedings before the surrogate, interested in sustaining or defeating the decree appealed from, should be made parties to the appeal (Gilchrist v. Rea, 9 Paige 66 ; Suffern v. Laurence, 4 How. 129 ; 2 Code Rep. 69); and a party so affected by the appeal, but not a party thereto, may have the same so modified as not to prejudice his rights (Gardner v. Gardner, 5 Paige, 170). On the final accounting of an executor, he should name the persons intended to be made respondents, and who are called upon to answer (Broun y. Ecans, 34 Barb. 594).
a. A petition of appeal from a decree of a surrogate assuming to settle the accounts of a guardian, on an application by him in his character of administrator, need not specify the items of the accounts (Banks v. Taylor, 10 Abb. 199).
6. Amending petition.—The court may allow a petition of appeal to be amended to bring in additional parties (Gilman v. Gilman, 35 Barb. 591).
c. Filing petition.—The court may extend the time to file the petition of appeal (Halsey v. Van Amringe, 4 Paige, 279; Suffern v. Lawrence, 4 How. 129).
d. Compelling surrogate to make a return.-A surrogate will be compelled to make a return to an appeal within a reasonable time (no time being fixed by statute or rule), by an order of the court, on pain of attachment (Gardner v. Brown, 5 How. 351). An objection, that his fees have not been paid, is of no avail where it appears they were offered to be paid when ascertained (ib.)
e. Extending time to procure return.-Where the appellant could not obtain a return, nor take any steps to procure it, nor compel the return, the court will allow him further time to procure the return (Gilman v. Gilman, 35 Barb. 591).
f. Motion to dismiss appeal.—Where an appeal taken from an order of the surrogate, and the petition of appeal is filed within the time prescribed by the rules of the court, an application to the court, under the rule to dismiss the appeal, by a party whose interest is affected by the appeal, but who has not been made a party to the petition of appeal, must be made upon notice. That rule only authorizes an ex parte application to be made to dismiss, where the petition of appeal has not been filed in time; not where any of the proper parties have been omitted in the petition (Suffern v. Lawrence, 4 How. 129; 2 Code Rep. 69).
9. Appeal, where heard.-An appeal from a surrogate's order admitting or refusing to admit a will to probate, should, in the first instance, be heard at general term (Watts v. Aikin, 4 How. 439; see Brockway v. Jewett, 16 Barb. 590). In Wever v. Marvin (7 How. 182; S. C. 14 Barb. 376), it was. held that appeals from decrees and sentences surrogates should be first heard at general term. In that case, however, the court (Wright, J.), at the request of both parties, heard the appeal at special term.
h. Papers to be furnished to the court.-Upon an appeal from a surrogate's decree, the papers necessary to be furnished to the court are the copy of the surrogate's return, copies of the petition of appeal and answer, and a copy of the points (Halsey v. Van Amringe, 6 Paige, 12).
i. Proceedings on appeal.–Upon an appeal from the decree of a surrogate, on an application for letters of administration, the supreme court is to review the determination upon the proofs before the surrogate. It cannot receive further evidence nor award an issue to be tried by jury at circuit. The power of the supreme court to award an issue is confined, it seems, to appeals from decisions admitting, or refusing to admit, a will to record or probate (Devin v. Patchin, 26 N. Y. 441).
j. In most, if not in all, cases of appeals from decisions of surrogates, the whole case is to be examined by the appellate court, as well upon the facts as upon the law, so far as questions are presented by the appeal, and this rule applies as well to the court of appeals as to the supreme court (Rolinson v. Raynor, 28 N. Y. 494).
k. An appeal to the supreme court from a decree of a surrogate denying probate of an alleged will, the court, if it deems the decree against the evidence, is not bound to award a feigned issue to try the questions of fact, but