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4. All other preferred cases.

Any party claiming a preference must so state in his notice of argument to the opposite party, and to the clerk, and he must also state the ground of such preference, so as to show to which of the above classes the case belongs. In making up the calendar, the clerk will place the preferred causes at the head, in the order above prescribed. A preferred cause being once passed without reservation, will take its place in subsequent calendars without preference.

See Rule XIII.

RULE XXIV.-Calendar to continue one year. Causes to be noticed for January term.

The printed calendar for the present January term, and for each succeeding January term, shall stand as the calendar for the entire year. Causes noticed and placed upon the calendar for the January term of any year, shall be considered as noticed for all the subsequent terms. Additional causes may be noticed for the March term, 1862, which shall be printed with their appropriate numbers, and annexed to the calendar. After the January term in each year hereafter, no causes, except such as are by law entitled to a preference, will be permitted to be placed upon the calendar without the direction of the court.

RULE XXV.-No defaults allowed.

Judgment by default will not be allowed, nor will causes be reserved, or set down for hearing upon a particular day, except in extraordinary cases. When a cause is called in its order upon the calendar, it must be either argued, submitted, or passed. If either party appear alone, he may, at his option, be heard orally, or submit the case upon his printed brief. If the appellant only appears, he shall furnish the court with the usual number of printed copies of the case, and of his points; if the respondent, he shall hand to the court the copies of the case served upon him, and fourteen printed copies of his points. The party thus appearing and arguing, or submitting his case, shall hand to the clerk a printed copy of his brief, to be delivered whenever called for, to the opposite party, who may, at any time within twenty days after the hearing, furnish each member of the court, and serve upon the opposite party, a printed answer to such brief, which may be replied to in like manner at any time within fifteen days after such service.

a. Appellant failing to appear, or to submit points, the judgment is affirmed of course (Kelly v. McCormick, 28 N. Y. 318; Smith v. Martin, 1 Trans. App. 25; 3 Keyes, 373). The 25th rule was not intended to impose upon the court the duty of acting as counsel for either party (see Maher v. Carman, 5 Trans. App. 25). The court will not postpone the argument on

account of the inability of a party to attend (Bank of Salina v. Alvord, 32 N. Y. 684).

RULE XXVI.-Call of calendar.

The call of the calendar at the second, and each subsequent term in the year, will commence at the point where it terminated at the previous term, except that causes placed upon the calendar at the next March term, if entitled by their date or otherwise, to priority over the causes remaining upon the calendar, will be first called. Causes which are passed, and which, of consequence, go to the foot of the calendar, will resume their original places upon the calendar for the ensuing year.

RULE XXVII.-Proof of service of notice of argument to be filed with the clerk.

In all cases where the notice of argument is filed with the clerk of this court, there shall be filed with the same due proof or admission of the service of notice of argument upon the adverse party. And the clerk is directed not to enter on the calendar any cause in which proof of the service of said notice is not filed with him.

RULE XXVIII.-Cases ordered to be re-argued.

All causes in which a re-argument is ordered, may, at the election of either party, be placed on the calendar at the next term after such re-argument is ordered, or the following term— the same to take its original place on the calendar.

RULE XXIX.-Notice of argument.

Either party may bring on the argument on a notice to be served on the opposite party, a copy of which notice, specifying the judicial district in which the cause originated, shall be filed with the clerk of this court on or before the fifteenth day of December in each year, which notice, except in criminal cases, shall be for the first day of the term, and the eighth rule is hereby repealed.

Calendar Practice.

Established January, 1854; as amended March, 1859.

a. No reservation will be made of any of the first ten causes unless on account of sickness, or an engagement elsewhere in the actual trial, or argument of another cause, commenced before the term of this court; or other inevitable necessity, to be shown by affidavit. Other causes may be reserved, upon reasonable cause being shown; but if such reservation is not made before the day on which the cause is liable to be called, stronger grounds will be required than when the application is made at an earlier period.

b. Causes reserved may be reserved either generally for the fourth week of term, or for an earlier day certain, at the election of counsel.

a. Those causes reserved for a day certain, will not be taken up until the ten causes in order for that day have been called.

b. In the fourth week, reserved causes will be first in order, and will be called before the calendar is taken up.

c. Reserved causes, when in order to be called, have priority among each other according to their calendar number.

d. Default may be taken in them, and they will, if passed, go down upon future calendars as if passed in the regular call.

e. The call in the fourth week will include all reserved causes which have not been previously called; but no reserved cause, whether reserved generally or for a particular day, will be called before its number is reached on the regular call of the calendar.

Miscellaneous Practice.

At the Terms of the Court, not included in the Rules (7 How. 240).

All the terms are held at the capitol, in the city of Albany. Four argument terms in a year.

The court opens at ten o'clock, A. M., on the first Tuesday of January, fourth Tuesday of March, third Tuesday of June, and the last Tuesday of September.

A term for consultation and decisions, to finish up the year's business, is held in the latter part of December in each year.

The chief judge has control of the calendar. All propositions in reference to the arrangement or disposition of causes should be addressed to him. (The other members of the court are usually consulted.)

Causes struck off under the rule are not included in the fifteen called each day under the rule.

The clerk publishes, in the newspapers at Albany, all the proceedings of the court each day, during the term.

A cause, when ready on both sides, may be submitted upon printed arguments and points, on any day during the term.

When causes are decided at the close of each term, the opinions are delivered to the reporter-not to the clerk. In cases of motions, the opinions are usually left with the clerk among the motion papers.

Tuesdays and Fridays of each week are motion days.

The court usually adjourns, for the term, on Friday of the fourth week. Causes, argued or submitted, are usually decided at the close of the next succeeding term.

Where it appears by affidavit, on moving the cause, that the suit has abated by the death of respondent, the cause should stand over till the next term, without prejudice, and with leave to move to substitute the parties in interest (Shaler Quarry Co. v. Brewster, 32 N. Y. 472).



ORDERED, that the following Rules shall commence and take effect on the first day of October next:

RULE 1.-Examination of candidates for admission.

Applicants for admission to practice as attorneys and counsellors, of this court, who are entitled to examination, shall be examined in open court; the examination shall be had at general term, and shall commence on the first Wednesday of the second and fourth general terms, which shall be held in the several judicial districts in each year, and at no other time or place, and no private examination shall be permitted.

a. Judges of the court of appeals, justices of the supreme court, judges of courts of record in the cities of New York, Brooklyn or Buffalo (Am'd'ts to Const. 1868, § 21), justices of the marine court (Laws 1870, ch. 582), and clerks of court and their deputies prohibited from practicing as attorneys (Laws of 1857, vol. 2, p. 199).

RULE 2.-Proof of citizenship, &c. Applicants from other States. To sign roll, &c., on admission.

To entitle an applicant to an examination, he must prove to the court

1. That he is a citizen of the United States, and that he is twenty-one years of age, and a resident of the district in which he applies, which proof may be made by his own affidavit of the


2 The evidence of good moral character shall be the certificate of a reputable counsellor of this court, or of some other reputable person known to the court; but such certificate shall not be deemed conclusive evidence, and the court must be satisfied, on the point, after a full examination and inquiry.

*b. See ante, p. 683, d, and Code, § 470, and Laws 1870, ch. 408, § 13. c. The court always deviates from its general rules whenever necessary (Clark v. Brooks, 26 How. 285; see Battershall v. Davis, 23 How. 384).

d. These rules apply to Marine and District Courts (Laws 1862, p. 971, § 3.) e. The supreme court in the several judicial districts has no power to create general rules; that power, by section 470 of the code, is expressly given to a convocation of the judges (In the Matter of the Bowery, 19 Barb. 591). But courts of record, except in the city of New York may, at general term, make orders for printing calendars (Laws 1862, ch. 86).

3. Such applicant must sustain a satisfactory examination upon the law of real and personal property, contracts, partnership, negotiable paper, principal and agent, principal and surety, insurance, executors and administrators, bailments, corporations, personal rights, domestic relations, wills, equity, jurisprudence, pleadings, practice, and evidence.

4. Applicants for admission from other States shall conform to the foregoing rules, unless they produce a certificate from a judge of the highest court of original jurisdiction in the State from which they come, to the effect that for three years, immediately preceding, they have practiced as attorneys or counsellors in such court, and that they are in good standing as such attorneys or counsellors.

5. Applicants admitted shall sign a roll, and subscribe and take the constitutional oath of office.

a. Admission.-As to the qualification for admission as an attorney, see Re Pratt (13 How. 1). Graduates of the Law department of the University of the City of New York, may be admitted to practice as attorneys, &c., without examination (Laws 1860, ch. 187; Re Cooper, 20 How. 1; 17; 22 N. Y. 67; Re the Graduates, 11 Abb. 301). The term "citizen" means citizen of this State. A citizen of another State is not entitled to admission as a matter of right (Re Henry, 40 N. Y. 560).

b. Nonresident attorneys.-Attorneys who are nonresidents of the State cannot practice in the courts of this State (Richardson v. Brooklyn City R. R. 22 How. 368); except as provided (Laws 1866, ch. 175).


c. Rights and duties of attorneys.—Where an attorney has appeared in an action, all subsequent proceedings must be conducted through him (Webb v. Dill, 18 Abb. 264). The client cannot interfere with his attorney as to the conduct of the action (Read v. French, 28 N. Y. 285). A person who has appeared by attorney cannot, while the retainer continues, appear on the record in person; a notice signed by a “defendant in person, while he has an attorney, may be disregarded (Halsey v. Carter, 6 Rob. 535; see Braistead v. Johnson, 5 Sand. 671; ante, 599, e.) An attorney employed merely to sue the maker of a note cannot release the indorser (East River B'k v. Kennedy, 9 Bosw. 544). The corporation of New York may, with the consent of the corporation counsel, appear by other attorney and counsel (The Mayor of N. Y v. Exchange Fire Ins. Co. 9 Bosw. 424; Mayor of N. Y. v. Hamilton Fire Ins. Co. 10 Bosw. 537). One attorney cannot act for plaintiff and defendant (Herrick v. Cutley, 1 Daly, 612; 30 How. 208).

d. None but an attorney or counsellor of the supreme court permitted to act before a justice of the peace, or police justice in the county of Kings (Laws 1862, ch. 53).

e. The attorney in a cause may, without authority of his client, waive a default and consent to open a judgment taken for want of an answer (Clussman v. Merkel, 3 Bosw. 402; Read v. French, 28 N. Y. 285). But an attorney cannot, without the consent of his client, consent to vacate a judgment secured on appeal (Quinn v, Lloyd, 5 Abb. N. S. 281; 36 How. 378), nor discharge a judgment for less than the full amount due thereon (Beers v. Hendrickson, 6 Rob. 53).

f. On the death of a party, the authority of the attorney ceases (Putnam v. Van Buren, 7 How. 31).

g. On the death, removal, or suspension of an attorney, or his ceasing to act, the client of such attorney must be notified to appoint another attorney before the opposite party can proceed in the action (2 R. S. 287, § 67; see Jewell v. Schouten, 1 N. Y. 241).

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