.

The printed page, exclusive of any marginal note or reference, shall be seven inches long, and three and a half inches wide. The folio numbering from the commencement to the end of the case, shall be printed on the outer margin of the page.

RULE VII.

Within forty days after the appeal is perfected, the appellant shall serve three printed copies of the case on the attorney of the adverse party. If he fail to do so, he shall be deemed to have waived the appeal ; and on an affidavit proving the default, the respondent may enter an order with the clerk dismissing the appeal for want of prosecution, with costs; and the court below may thereupon proceed as though there had been no appeal.

a. This rule applied to appeals pending when this rule was adopted, Dresser v. Brooks, 2 Code Rep., 130.

See note to section 339 of the code, as to when the appeal is perfected.

b. Where, after the respondent had entered an order under this rule, dismissing the appeal for want of prosecution, and the cause had been remitted to the court below, the appellant moved to set aside the said order entered by the respondent, and per curiam," Although the respondent has been regular, the appellant would be relieved on terms if we had power to grant it; but as the cause has been regularly remitted to the supreme court, we no longer have jurisdiction, and cannot grant relief. The only remedy is a new appeal." Dresser v. Brooks, 2 Coms., 561.

c. Where an appeal is regularly dismissed by the court of appeals, and the remittitur sent down, the appellate court loses possession of the cause and all power over it; but where an order dismissing an appeal is irregularly entered, or entered upon a false or garbled affidavit, the appellate court may grant relief by vacating the order of dismissal. So long as the order of the appellate court stands the court below is bound by it, and has no power to make an order impairing its force. The court below cannot, therefore, upon motion vacate a judgment entered upon the remittitur on account of the irregularity of the order of the appellate court. Newton v. Harris, 1 Code Rep., N. S., 191.

d. It has been decided by this [superior] court upon full consideration, that after a remittitur has been regularly filed and an order entered to carry into effect the judgment of the appellate court, the order will not be vacated, and the remittitur taken from the files, without some suggestion from the appellate court itself that the remittitur does not conform to its judgment, or has been irregularly issued. Seldon v. Vermilyea, 3 Sand 683; Bogardus v. Rosendale Manufac. Co., 1 Duer, 502.

e. Where an appeal to the court of appeals is dismissed for want of prosecution and remitted to the court below (the superior court) to be there proceeded with, the proper course appears to be that the judgment of the court of appeals be directed to be made the judgment of the court below, and that the costs of the appeal be adjusted by the clerk, and by him entered in the judgment. Union India Rubber Co. v. Babcock, 1 Abbott, 267.

f. In the foregoing case the judges of the superior court settled the form of an order or judgment to be entered in the court below on a remittitur from the court of appeals as follows:

Title of cause.]

At a Special Term, &c.

This cause having been brought on upon the remittitur herein sent down from the court of appeals, and now filed in this court, by which remittitur it appears that an appeal was taken by the defendant from the judgment of this court to the court of appeals, and that such appeal has been dismissed by such court with cost for want of prosecution, and that the record and proceedings had been directed by said

court of appeals to be remitted to this court, and this court directed to enforce the said judgment of the court of appeals according to law. Now therefore, on motion of the counsel for the plaintiff, it is ordered and adjudged that the judgment of the court of appeals be and the same is hereby made the judgment of this court, and that the plaintiff have execution against the defendants for the costs when adjudged, by the clerk and inserted in the judgment as well as for the amount to be adjudged, to be recovered in and by the judgment of this court in this cause entered the day, &c., and that this order or judgment be annexed to the judgment record herein.

Either party may bring on the argument on a notice of eight days; which notice, except in criminal cases, shall be for the first day of the

term.

A copy of the notice, specifying the judicial district in which the cause originated, shall be furnished to the clerk eight days before the first day of the term.

The clerk shall make a calendar of the causes thus noticed, arranging them in the order in which the returns were filed, specifying the judicial district in which the causes originated respectively.

Copies of the calendar for the use of the judges, and five other copies to be delivered to the clerk, shall be printed in like manner as cases and points are directed to be printed.

See Wilkin v. Pearce, 5 Pr. R., 26 in note to section 256 of the code.

RULE IX.

At the commencement of the argument the appellant shall furnish a printed copy of the case to each of the judges, and shall deliver six other copies to the clerk. Each party shall at the same time furnish to each of the judges a printed copy of the points on which he intends to rely, with a reference to the authorities which he intends to cite; and shall deliver six other copies to the clerk, and three copies to the counsel of the adverse party.

The cases, points, and calendars delivered to the clerk shall be disposed of as follows: one copy of each shall be kept by the clerk with the records of the court, one copy shall be deposited in the State library, one copy shall be deposited in each branch of the library of the court of appeals, one copy shall be deposited in the library of the New York Law Institute, and one copy shall be delivered to the reporter.

a. The heads of an argument, together with the authorities cited, but not the argument at length, are embraced under the term "points." Gray v. Schenck, 3 Pr. R. 231.

b. Will the court take notice of any matter not raised by the points submitted? Dolloway v. Turrill, 26 Wend. 398 and 403.

RULE X.

In all cases each party shall briefly state upon his printed points, in a separate form, the leading facts which he deems established, with a reference to the folios where the evidence of such facts may be found. And the court will not hear an extended discussion upon any mere question of

fact.

RULE XI.

The party who has noticed and placed the cause on the calendar for argument, may take judgment of affirmance or reversal, as the case may be, if the other party shall neglect to appear and argue the cause, or shall neglect to furnish and deliver cases or points as required by the ninth and tenth rules.

RULE XII.

In the argument of calendar causes and motions, only one counsel will be heard on each side, unless the court shall otherwise direct.

RULE XIII.

Criminal cases shall have a preference, and may be moved, on behalf of the people, out of their order on the calendar.

Barron v. The People, 1 Barb., 136.

RULE XIV.

Causes may be submitted by the parties on printed arguments.

RULE XV.

Motions will be heard on the morning of the first day, and the morning of each following Tuesday and Friday during the term, before taking up the calendar.

Where notice has been given of a motion, if no one shall appear to oppose, it will be granted as of course.

RULE XVI.

The remittitur shall contain a copy of the judgment of this court, and the return made by the clerk of the court below; and shall be sealed with the seal, and signed by the clerk, of this court.

RULE XVII.

When a decree or order shall be affirmed or reversed by the default of either party, the remittitur shall not be sent to the court below, unless this court shall otherwise direct, until ten days after notice of the affirmance or reversal shall have been served on the attorney of the party in default. Service of the notice shall be proved to the clerk by affi davit, or by the written admission of the attorney on whom it was served.

a. The 17th rule of the Court of Appeals was intended to protect the party against surprise, and to give him ample time to make his application for relief, or to obtain an order staying proceedings, to enable him to do so; and if a party rejects the opportunity to avail himself of the benefit of the time thus given, and permits the remittitur to be sent to the court below, the appellate court has lost all power over the cause. Latson v. Wallace, 9 Pr. R., 335. Thus where a default was taken 8th April, notice thereof served 10th April, and the remittitur filed 12th May, held that a motion made afterwards to open the default was too late. 16.

RULE XVIII.

The time prescribed by these rules for doing any act may be enlarged by the court or by either of the judges thereof; and either of the judges may make orders to stay proceedings, which when served with papers and notice of motion, shall stay the proceedings according to the terms of the order. Any order may be revoked or modified by the judge who made it; or, in case of his absence or inability to act, by either of the other judges.

RULE XIX.

These rules shall take effect on the first day of July next (1849); from which time all former rules are abrogated, except so far as it may be necessary to follow them upon appeals and writs of error which shall be then pending.

ADDITIONAL RULES, ADOPTED JULY 1st, 1852.

RULE XX.

Ten causes only will be called on any day, but after such call causes ready on both sides will be heard in their order. Any cause which is regularly called and passed without postponement by the court for good cause shown, at the time of the call, will be placed on all subsequent calendars as if the return had been filed on the day when it was so passed.

Causes upon the calendar may be exchanged one for another, of course, on filing with the clerk in court a note of the proposed exchange with the numbers of the causes, signed by the respective attorneys or counsel. Upon all subsequent calendars, each of said causes will take the place due to the date of the filing of the return in the other.

Any cause may be struck from the calendar of course, and without prejudice, by the clerk in court, on consent of both parties on either the first or fourth days of term.

RULE XXI.

The clerk must keep a memorandum of such exchanged and passed causes, and place them, upon all subsequent calendars, in accordance with the foregoing provisions.

Rules VI., X., XX., and XII., with a notice that "14 copies of cases and points are required," must be printed on the first leaf of the calendar.

Ordered, that the rule adopted at June Term, 1850, relative to the call of the calendar, be abrogated.

a. Miscellaneous Practice at the Terms of the Court, not included in the Rules. (7 Pr. R., 240.)

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

The court opens at 10 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 decision, 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 ten 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 the 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.