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The plaintiff, in an action against next of kin to establish a lost will, is not a competent witness in his own behalf to prove conversations had between himself and the deceased, on the subject of the alleged will (Timon v. Claffy, 45 Barb. 438; and see Van Alstyne v. Van Alstyně, 28 N. Y. 378; Williston v. Williston, 41 Barb. 635).

a. A party sued by an administrator may testify to a conversation heard by him between the decedent and a third person (Simmons v. Sissons, 26 N. Y. 264).

b. In an action by a legatee of a bond against the obligor, the defendant may be examined on his own behalf to prove payments in the lifetime of the plaintiff's testator (Wildey v. Whitney, 25 How. 75; and see Schenck v. Warner, 37 Barb. 258; Hight v. Sackett, 34 N. Y. 447).

c. The bailee for hire of a chattel, when sued for its detention by a third party, may be a witness in his own behalf, although the bailor be dead (Penny v. Black, 6 Bosw. 50).

SECTION 400. 401.

d. The fact that a witness cannot testify to certain matters, e. g., to transactions with a deceased person, is not a reason for refusing to swear him; non constat, that he could not give other material testimony (Card v. Card, 7 Trans. App. 144).


Motions and Orders.

Definition of an order.

Definition of a motion. Motions, how and when made. Motions in the first district. Stay of proceedings. Compelling parties to testify on motions.

Notice of motion.


403. In actions in the supreme court, county judge may exercise powers of a judge at chambers. His orders, how re


404. In absence, &c., of judge at chambers, motion may be transferred to another judge.

405. Enlarging time for the proceedings in an action.

$ 400. Definition of an order.

Every direction of a court, or judge, made or entered in writing, and not included in a judgment, is denominated an order.

e. Order and judgment, distinction between.-An order is the decision of a motion, a judgment is the decision of a trial (Bentley v. Jones, 4 How. 435; King v. Stafford, 5 How. 30). Every direction of a court, or judge, does not become an order by being put in writing (Howard v. Freeman, 6 Rob, 511). An order for a new trial is not a judgment (Duane v. North. R. R. Co. 4 How. 364).

§ 401. (Am'd 1849, 1852, 1858, 1859, 1862, 1867, 1870.) Definition of a motion. Motions, how and where made. Motions in the first district. Stay of proceedings. Compelling parties to testify.

(1.) An application for an order is a motion.

(2.) Motions may be made, in the first judicial district, to a judge or justice out of court, except for a new trial on the merits. (3.) Orders made out of court, without notice, may be made by any judge of the court, in any part of the State; and they may also be made by a county judge of the county where the action is triable, or by the county judge of the county in which the attorney for the moving party resides, except to stay proceedings after verdict.

(4.) Motions upon notice must be made within the district in which the action is triable, or in a county adjoining that in which it is triable; except, that where the action is triable in the first judicial district, the motion must be made therein, and no motion upon notice can be made in the first judicial district, in an action triable elsewhere.

(5.) In all the districts, a motion to vacate or modify a provisional remedy, and an appeal from an order allowing a provisional remedy, shall have preference over all other motions.

(6.) No order to stay proceedings for a longer time than twenty days shall be granted by a judge out of court, except to stay proceedings under an order, or judgment appealed from, or upon previous notice to the adverse party.

(7.) When any party intends to make or oppose a motion in any court of record, and it shall be necessary for him to have the affidavit of any person who shall have refused to make the same, such court may, by order, appoint a referee to take the affidavit or deposition of such person. Such person may be subpœnaed, and compelled to attend and make an affidavit before such referee, the same as before a referee to whom it is referred to try an issue. And the fees of such referee, for such service, shall be three dollars per day.

(8.) Whenever a motion shall be made in any cause or proceeding, in any of the courts of this State, to obtain an injunction order, order of arrest, or warrant of attachment, or to vacate, modify or set aside any injunction order, order of arrest, or warrant of attachment granted in any such case or proceeding, it shall be the duty of the judge, before whom such motion is made, to render and make known his decision on such motion within twenty days after the day upon which such motion shall or may be submitted to him for his decision.

Note to subdivision 1.

a. What is a motion?—The following applications to the court have

been held to be motions: Application for a commission (Erwin v. Voorhies, 26 Barb. 127; 13 How. 130); an appeal pursuant to § 349 (Savage v. Darrow, 2 Code R. 57); an application pursuant to § 247 (Roberts v. Clarke, 10 How, 415; Gould v. Carpenter, 7 id. 99); an application for a mandamus against public officers (The People v. Superv. of Schuyler, 2 Abb. N. S. 78). But the application to have costs of appeal from a surrogate's decree taxed is not a motion (Brockway v. Jewett, 16 Barb, 590; and see Bowne v. Anthony, 13 How. 301).

Note to subdivision 2.

a. This applies to all motions, except the one excepted, "therefore an order for the appointment of a guardian in partition, may be made by a judge at chambers" (Disbrow v. Folger, 5 Abb. 54; and see ante, p. 27, d).

Note to subdivision 3.

b. The term "the court" means the court in which the action is pending (Mann v. Tyler, 6 How. 236). A county judge may make an order, staying proceedings on a judgment on the report of a referee. A report of a referee is not a verdict (Otis v. Spencer, 8 How. 171).

Note to subdivision 4.

c. Motion, where to be made.-In order to authorize the court to hear a motion it is not necessary to show that it is made in the proper county. If not thus made, that fact can be shown in opposition to the motion, or it may furnish ground for vacating any order taken by default on such motion, and perhaps any order on such motion would be void (Newcombe v. Reed, 14 How. 100; see, however, as to the order being void, Blackmar v. Van Inwager, 5 id. 367; Geller v. Hoyt. 7 id. 265).

d. The county in which an action is triable, is the county in which the venue is laid, that is, the county named as place of trial in the complaint (Gould v. Chapin, 4 How. 185; Canal B'k v. Harris, 1 Abb. 192). The word triable applies only to the county named as the place of trial (Bangs v. Selden, 13 How. 163). Thus where the plaintiff and defendant reside in different counties not adjoining, and in different judicial districts not adjoining, and the plaintiff names the county of his residence as the place of trial, that is the county in which the action is triable, until the place of trial is changed by an order of the court (id.; S. C. id. 374; Askins v. Hearns, 3 Abb. 184; Chubbuck v. Morrison, 6 How. 367).

e. Where no copy of the complaint has been served, and no complaint has been filed, the defendant, for the purpose of moving, is at liberty to regard the county in which the summons states the complaint will be filed, as the county in which the action is triable (Johnson v. Bryan, 1 Code Rep. N. S. 46; Davison v. Powell, 13 How. 287). And semble, where no place of trial is named in the complaint, the motion may be made in any district within which the action is properly triable (Hotchkiss v. Crocker, 15 How. 336).

f. Erie county.-Actions triable in Erie county require all motions in relation to them to be made in the 8th district, as there are no counties out of that district adjoining Erie (Inglehart v. Johnson, 6 How. 80).

g. Orleans county.-All motions in the supreme court, and all suits and proceedings in equity in said court, arising in the county of Orleans, may be brought to a hearing at any special or general term of said court in the county of Erie, in the same manner as though the said county of Erie was adjoining the said county of Orleans (Laws of 1848, ch. 35, p. 47).

h. First district. The special or general terms of the supreme court, in the first judicial district, have no jurisdiction to hear a motion [upon notice] in an action triable in another district (Harris v. Clark, 10 How. 415; Canal Bank v. Harris, id. 452; 19 Barb. 587; Wheeler v. Maitland, 12 How. 35). An application for an order of supersedeas (under 2 R. S. 556, §§ 36, 37) may be made to the judge of the first district, although the action is triable elsewhere

(Wells v. Jones, 2 Abb. 20). It is not a case governed by section 401 (id.; and see Weed v. Sturgis, 13 How. 130; Cunningham v. Widing, 5 Abb 413). Note to subdivision 6.

a. Stay of proceedings.—No judge has the right, arbitrarily, to make an ex parte order staying proceedings in an action for a given period, or twenty days (Mills v. Thursby, 11 How. 114). The stay should always be until the party obtaining it can make some other application for relief (Chubbuck v. Morrison, 6 How. 367; see Sales v. Woodin, 8 How. 350); whether the stay exceeding the time limited be granted by a single order or by successive orders, is immaterial, in either case the stay is irregular (Anon. 5 Sand. 656; Marvin v. Lewis, 12 Abb. 482).

b. An order extending the time to make a case or exceptions, is not per se a stay of proceedings, and this clause of the section does not apply to such an order (Thompson v. Blanchard, 1 Code Rep. 105; Huff v. Bennett, 2 ib. 139; Adams v. Sage, 13 How. 18; and see Salls v. Butler, 27 How. 133).

c. An order extending the time to answer was held not to be a stay of proceedings (Wilcock v. Curtis, 1 Code Rep. 96; Sisson v. Lawrence, 16 Abb. 259, note; 25 How. 435); and therefore a county judge may, by an ex parte order, extend the time to answer more than twenty days (id.)

d. An order of a judge staying proceedings cannot be treated as a nullity on the ground that it was improvidently granted, or improperly or fraudulently obtained (Harris v. Clark, 10 How. 416). The proper remedy is to move to have it vacated (Hempstead v. Hempstead, 7 id. 8; Wood v. Kimball, 9 Abb. 419; 18 How. 163). On motion to vacate an ex parte order granting a stay for more than twenty days, the court may order a stay (Clumpha v. Whiting, 10 Abb. 448).

e. Where an order is obtained staying plaintiff's proceedings pending a motion, the defendant is entitled to the whole of the day on which the motion is disposed of for taking the next step in the cause, although, pending the stay, his time to take such step may have expired (see Vernon v. Hodgkinson, 3 Cr. M. & R. 151; 1 Tyrw. & Gr. 427; 4 Dowl. 665). Where there is a stay of proceedings until the decision of a motion, and on deciding the motion the stay is ordered to be continued, the opposite party cannot take any step intermediate the decision and the service of the order (Warren v. Wendell, 13 Abb. 187).

Note to subdivision 7.

f. Application for order.-To authorize the granting an order under this subdivision, it must appear by competent proof, (1) that the applicant intends to make or oppose a motion; (2) that it is necessary, in making or opposing such motion, to have the deposition of some person who refuses to make a voluntary affidavit. Usually the affidavit of the attorney is sufficient proof of these matters. Where it appears either that no motion is to be made or opposed, or if a motion is to be made or opposed, it is not such a motion as to require the deposition of any witness, e. g., a motion to make a pleading definite or certain, the order will not be granted, or if granted, will, on the facts being shown, be vacated (Moses v. Banker, 7 Rob. 131). The order for taking the examination of a witness can be made only upon proof that the affidavit of the witness is necessary (Fisk v. Chicago R. R. Co. 3 Abb. N. S. 430).

After a person has made a voluntary affidavit, semble, no order should be made for his oral examination (Ryers v. Hedges, 1 Hill, 646).


h. Ordinarily, the proper course where an affidavit is desired, is, prior to making a motion for an order, to draft an affidavit and submit it to the witness to be verified. The objection that no affidavit has been prepared and submitted may be waived, and it is waived if, when asked to make an affidavit, the witness does not require a draft to be submitted, but makes a general refusal to testify (Fisk v. Chicago R. R. Co. 3 Abb. N. S. 430) After a witness has refused to make an affidavit, and an order for his examination has been

made, he is not entitled to have the order vacated by subsequently tendering an affidavit, but if the affidavit is full and frank, the court may vacate the order (id.)

ɑ. Examination of party to action.-In Fisk v. Chicago R. R. Co. 3 Abb. N. S. 430, Cardozo, J., held that a party to the action could be ordered to make a deposition under this subdivision; but the reverse was held by Barrett, J., in Hodgkin v. Atlantic R. R. Co. 5 Abb. N. S. 73. The power to order a party to make a deposition on a motion did not exist prior to the code (Palmer v. Adams, 22 How. 375; and see Meyer v. Lent, 7 Abb. 225; and infra in this note).

6. Ex parte.-The order may be applied for ex parte (Brooks v. Schultz, 5 Rob. 556; 3 Abb. N. S. 124).

c. Notice. No notice of obtaining the order need be given to the adverse party in the action; he is not entitled to take part in the examination (Erie R. R. Co. v. Champlain, 35 How. 73, Balcomb, J.; see opinion of Robertson, J. 3 Abb. N. S. 125; and of Barbour, J. 5 Rob. 657).

d. The examination.—A “fishing” examination is not allowable (Fisk v. Chicago R. R. Co. 3 Abb. N. S. 430); but the witness must answer all proper questions; on his refusal to answer he may be punished as for a contempt (Clark v. Brooks, 26 How. 254). No examination of books and papers is a lowable (Fisk v. Chicago R'way Co. supra). A party refusing to be examined is not alone a sufficient ground for deciding the motion against him (Meyer v. Lent, 7 Abb. 225).

e. Setting aside order.—One whose deposition has been ordered to be taken, pursuant to this subdivision, may move to set aside the order for his examination; but the party to the action, adverse to the party who obtained the order, cannot move to set it aside (Ramsey v. Gould, 39 How. 62). After attending, being sworn, and partially examined, the witness cannot move to set aside the order for his examination (Erie R. R. Co. v. Champlain, 35 How. 74).

f. Revised statutes.-The revised statutes provide: when there shall be a motion or other proceeding in the supreme court, in which it shall be necessary for either party to have the deposition of any witness who shall have refused voluntarily to make his deposition, the court may direct a commission to be issued to one or more persons, inhabitants of the county in which such witness resides, to take his testimony. Such witness may be subpœnaed to attend and testify before such commissioners, in the same manner as before referees, and with the like effect; and obedience to such subpoena shall be enforced in the same manner (2 R. S. 554, §§ 24, 25). On a motion to vacate an arrest, the court refused the plaintiff's application for a commission to examine, as witnesses on the motion, two of the defendants who were out of the State (Huelin v. Ridner, 6 Abb. 19; Stake v. Andre, 9 Abb. 420; 18 How. 159; and see Palmer v. Adams, 22 How. 375).

§ 402. (Am'd 1849.) Notice of motion.

When a notice of a motion is necessary, it must be served eight days before the time appointed for the hearing; but the court or judge may, by an order to show cause, prescribe a shorter time.

g. Motions to be on notice.-All motions are to be on notice, or order to show cause (Rule 39). But an application to the court to remove a mere technical difficulty, by which other parties cannot be affected, may be made ex parte (Re Patterson, 4 How. 34).

h. A notice of less than eight days is, in the absence of an order to show cause, irregular (Rogers v. McElhone, 12 Abb. 292; 20 How. 441); the objection to the length of the notice must be made on the hearing of the motion; it cannot be insisted upon for the first time on appeal (16 How. 271).

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