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a. The granting an order to show cause is not a matter of course (Androvette v. Boune, 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 ▾ Snediker, 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. Bacon, 12 Abb. 142; 21 How. 478; and see Schlemmer v. Myerstein, 19 How. 412; Mills v. Thursby, 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, & How. 182). Copies of pleadings served on the adverse party should be perfect copies, including signatures, 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 (Fan 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 obtaining 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).
ƒ. 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).
9. 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, it 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 (Vernovy 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 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
the successful party does not enter the order, the unsuccessful party may do so, in order to appeal (Peet v. Cowenhoven, 14 Abb 56; and ante, p. 558, e, 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 (Walkinshaw v. Perzel, 7 Rob. 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; Bowman v. Sheldon, 5 Sand. 657; Cazneau 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. Cowenhoven, 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; Lovell 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 heard (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 (Butts v. 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. 290; 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. Inwager, 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 commissioner (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 triable; that being so, the injunction order in this case is a nullity" (Eddy v. Howlett, 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).
b. 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 ac
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. Wood, 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.