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If any such persons are infants, guardians must be appointed as in ordinary actions; and if any are absent, nonresident, or cannot be found, special application must be made to the court for direction in the premises.
6. The referee shall require a full and complete abstract of the title to be furnished to him, and which he shall verify for such length of time as he may deem advisable, together with full, complete, and original returns of searches for mortgages, conveyances, and all other liens whatever, affecting the title of the property, and such affidavits also as he may deem proper. And he shall annex to and return with his report, all such papers, together with the proofs of service of notices upon adverse claimants, and all testimony taken before him.
7. Notice of hearing, upon the report of the referee, shall be served upon all persons who appeared upon the reference, and proof shall be furnished to the court of the service of such notice.
[The foregoing rules as to "unknown owners were not made at a convocation of the judges as provided in section 470 of the code. They are not, therefore, "general rules" (In the matter of the Bowery, 19 Barb. 591). Nor were they published as required by Laws of 1847, ch. 470. Nor were they concurred in or recognized by all the judges of the first district.]
Mortgage or Sale by Religious Corporation.
MARCH 24, 1862.-Ordered, That in all future applications made to this court by religious corporations for leave to mortgage or sell their real estate, it shall be necessary to submit, with the petition to the court, a statement specifying what property had been sold by the corporation under any order of the court at any time within five years next preceding such application, and also showing the object for which sales, if any were ordered, and the disposition actually made of the proceeds of any sale. Such statement shall be verified by one of the officers of the corporation.
a. An application for leave to sell the real estate of a religious corporation must be made to the supreme court (Wyatt v. Benson, 23 Barb. 237; 4 Abb. 182).
b. The vestry or trustees of a religious corporation may apply for an order to mortgage or sell the real estate of such corporation, without any express vote of the corporation, and where the good faith and propriety of the application are unquestioned (Re St. Ann's Church, 14 Abb. 424; 23 How. 285).
c. Power of supreme court over the real estate of religious corporations (Mad. Av. Bapt. Ch. v. Bapt. Ch. in Oliver St. 19 Abb. 105; 2 Abb. N. S. 254; 3 Rob. 570; 5 Rob. 649; St James' Ch. v. Ch. of Redeemer, 45 Barb. 356; and see 11 N. Y. 243; 20 How. 324).
SUPERIOR COURT RULES.
ADOPTED MARCH 1, 1870.
RULE I.-There shall be a general term of the court held in the months of January, February, March, April, May, June, October, November, and December, commencing on the first Monday in each month, and terminating on the second Saturday thereafter, unless further extended by the judges holding the term.
There shall also be a general term held on the days designated in vacation, for the hearing of appeals from orders only.
RULE II.-A note of issue of cases for the general term. calendar must be filed with the clerk for each term, at least eight days before the first day of the term.
RULE III.-Appeals from orders shall be heard in the general term on the first and second Mondays, and the second Friday in term, and on the days appointed in vacation, at the opening of
RULE IV. In calendar causes, and also in appeals from orders, the parties shall deliver eight copies of the printed papers and points to the clerk, at the commencement of the argument, which printed case shall contain a certificate of the clerk that the case has been duly filed upon the order of the judge or referee who tried the cause.
RULE V.-A general term will be held in full bench on the Saturday next preceding the commencement of each regular calendar term, for the purpose of announcing decisions, and the hearing of such motions and appeals as shall be directed to be then heard.
RULE VI.-There shall be a special term of the court for the trial of issues of law and of issues of fact without a jury, and for the hearing of motions and granting of ex parte orders, held during each month in the year, commencing on the first Monday
of each month, and terminating on the Saturday immediately preceding the first Monday of the succeeding month.
In the months of July, August, and September no trials shall be had, unless ordered by the justice presiding.
RULE VII.-No more than one special term shall be held at the same time.
RULE VIII.-No order to show cause made by a judge out of court shall be made returnable, nor shall any motion be noticed for hearing elsewhere than at the regular special term and in the regular special term room, and all such orders and motions shall be there heard and not elsewhere, except by order of the judg holding the special term.
Defaults in such orders and motions shall be taken at the regular special term and in the regular special term room, and not elsewhere, and any default taken elsewhere will be vacated by the judge holding the regular special term.
This rule shall apply to orders and motions in actions only.
RULE IX.-The special term will be opened at 10 o'clock A.M., and continue in session until 3 o'clock P.M. of each day, except New Year's Day, the twenty-second of February, Good Friday, the Fourth of July, the days of the annual and charter elections, Thanksgiving Day and Christmas.
RULE X.-All motions must be noticed for, and orders to show cause made by a judge not holding special term, returnable on the first Monday or one of the Saturdays of the term.
CIRCUIT OR JURY TERMS.
RULE XI.-There shall be two terms of the court for the trial of causes by jury, denominated respectively "part first" and " part second," held in the months of January, February, March, April, May, June, October, November, and December, commencing on the first Monday, and terminating on the last Saturday of each month, unless the judge presiding shall, by an order, direct his term to be further continued, de die in diem, for the purpose of completing the trial of an action, or the hearing of a motion for a new trial already commenced before him.
RULE XII.-The day calendar shall be called through each morning at the opening of the court. The plaintiff, on failure of the defendant to appear, may take an inquest; and the defendant, on failure of the plaintiff to appear, may have a dismissal of the complaint.
RULE XIII.-Causes which shall have been called upon the day calendar of a jury term, and set down for a future day during the same term, must be tried when again reached, or they will be placed at the foot of the general calendar, or the action dismissed, unless the trial shall be further postponed by the court for good and sufficient cause shown by affidavit.
RULE XIV.-Causes on the jury calendar may be reserved generally at any time before the cause is on the day calendar, by filing with the clerk the written consent of the attorneys. Motions to put such causes on the day calendar may be made to the judge holding the special term, on two days' notice.
RULE XV.-It shall be the duty of the attorney, by whom the copy pleadings shall be furnished for the use of the court on a trial, to plainly designate on each pleading the part or parts thereof admitted or controverted by the succeeding pleading.
RULE XVI.-The general jury and special terms for the trial of causes, shall respectively be opened at eleven o'clock in the forenoon.
RULE XVII.-No ex parte order for the substitution of attorney for either party to any action pending in this court shall be granted unless upon the consent in writing, signed by the party and his attorney, duly acknowledged or proven by affi
RULE XVIII.-No case or exceptions to be annexed to the judgment-roll shall hereafter be filed with the clerk of this court, unless the same is so ordered by the justice or referee who tried
RULE XIX.-No case or exceptions will be ordered to be filed until it shall have been engrossed or printed after settlement, with all the papers and exhibits required to be inserted therein.
RULE XX. If no case or bill of exceptions is on file, or if one is on file without the order of the judge or referee who tried the cause, directing the same to be filed, then the cause shall not be put on the general term calendar.
The general term clerk shall specify on the general term calendar by what judge or referee said cause was tried.
RULE XXI.-All notes of issue for the general term shall
hereafter specify the day on which the case or bill of exceptions was filed, by what judge or referee the cause was tried, and whether the case or bill of exceptions has been ordered to be filed by that judge or referee. The clerk will not receive any note of issue which does not comply herewith.
RULE XXII.-Case or exceptions presented for settlement shall have plainly marked upon the proposed case or exceptions, and also upon the stenographer's minutes of the evidence, the parts to which the proposed amendments are applicable, together with the number of the amendment.
RULE XXIII.-In actions on contract, where there is reason to believe that the defense is interposed for the purpose of delay, and that the trial will not occupy more than one hour, the plaintiff may apply by motion at special term, on a notice of four days, to have the issue placed upon a special calendar for trial (serving with such notice any affidavits or papers he may wish to use on the motion which have not already been served); and the same may be so ordered, in the discretion of the justice before whom the motion shall be made.
If such motion be granted, the cause will be entered on the special calendar, to be made by the clerk, on receiving a note of the issue, specifying the number of the cause on the general calendar, and the date of order directing it to be placed on such special calendar; such notes of issue to be filed with the clerk four days before the day on which the cause shall be so entered.
The special calendar shall be called on the second and last Friday of each jury term, in part first, by the justice there presiding, and the causes may be tried in either part, as may be directed by such justice.
If the trial of the cause shall occupy more than one hour, the trial may be suspended, at the discretion of the court, and the cause be placed at the foot of the general calendar.
All rules heretofore adopted are hereby abrogated.