way Co. 6 Abb. N. S. 442. See Harris v. | improvidently granted, or improperly or fraudClark, 10 How. 415. b. Case or exceptions.—An order extending time in which to make a case or exceptions is not, per se, a stay of proceedings, and this subdivision does not apply to such an order. Thompson v. Blanchard, 1 Code R. 105; S. C. 3 How. 399; Huff v. Bennett, 2 Code R. 139; S. C. 2 Sandf. 703; Adams v. Sage, 13 How. 18. See Salls v. Butler, 27 id. 133. c. Time to answer.- An order extending time in which to answer is not a stay of proceedings. Wilcock v. Curtis, 1 Code R. 96; Sisson v. Lawrence, 16 Abb. 259 (n.); S. C. 25 How. 435. But it supersedes a prior motion noticed to strike out portions of the complaint, where there is no reservation in the order of the right to make such motion. Marry v. James, 34 How. 238; Bowman v. Sheldon, 5 Sandf. 657; S. C. 10 New York Leg. Obs. 339. See Garrison v. Carr, 34 How. 187; 3 Abb. N. S. 266. An order staying proceedings cannot be treated as a nullity on the ground that it was ulently obtained. Harris v. Clark, 10 How. 416. In such case, the proper remedy is by motion to vacate or set it aside. Hempstead v. 5 Sandf. 656; Sales v. Woodin, 8 How. 349; But see Anonymous, Hempstead, 7 id. 8. Huff v. Bennett, 2 Code R. 139; S. C. 2 Sandt. 703; Traver v. Silvernail, 2 Code R. 96. granting a stay of proceedings for more than On a motion to set aside an ex parte order, twenty days, the court may order a stay. Clumpha v. Whiting, 10 Abb. 448. An ex parte order staying proceedings for more than twenty days is void. Bangs v. Selden, 13 How. 374. See Hasbrouck v. Ehrich, 7 Abb. 76; Schenck v. McKie, 4 How. 246. Also Wood v. Kimball, 9 Abb. 419; S. C. 18 How. 163. Where there is a stay of 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, though, pending the stay, the time to take such step may have expired. See Vernon v. Hodgins, 1 Mees. & Wels. 151 Tyrwh. & Gr. 427; 4 Dowl. 665. SUBDIVISION a. Application for an order under this subdivision must show by competent and sufficient proof: First, that the applicant intends to make or oppose a motion; and second, that it is necessary for him in making or opposing such motion, to have the deposition of some person who refuses to make a voluntary affidavit. Moses v. Banker, 34 How. 212; S. C. 7 Rob. 131. Usually, the affidavit of the attorney is sufficient proof of these matters. But if from such affidavit, it appears either that there is no intention of making or opposing a motion, or that the desired deposition is not necessary (as in a motion to make a pleading more definite and certain), or that the court has no power to order the party whose deposition is desired to make it, then the court is bound to refuse the order. id. An order for an examination can only be made upon proof that the affidavit of the witness is necessary. Fisk v. Chicago, Rock Island and Pacific Railroad Co. 3 Abb. N. S. 430. b. Proper procedure is, generally, where an affidavit is desired, to draft one and submit it to the witness, requesting him to verify it. The objection, however, that no affidavit has been offered to the person whose deposition is sought, 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. id. After a witness has refused to make an affidavit, and an examination has been ordered, he is not entitled to have the order vacated by subsequently tendering an affidavit, unless it very clearly appears that such affidavit is full and frank. Ib. c. Affidavit of party to the action. A party to the action, as well as any other 6. witness, may be compelled to make an affi davit under this subdivision. Fisk v. Chicago, Rock Island and Pacific Railroad Co. 3 Abb. N. S. 431. Contra, Hodgkin v. Atlantic and Pacific Railroad Co. 5 Abb. N. S. 73. d. Referee, to take the deposition, may be appointed ex parte. Brooks v. Schultz, 5 Rob. 656; S. C. 3 Abb. N. S. 124. He may, of his own accord, ask questions of the witness. Ib. e. Notice of application.- No notice of the application for an order need be given to the adverse party to the action. f. Setting aside the order. — After appearing, being sworn and partially examined without objection, the witness cannot move to vacate the order appointing the referee on the ground that he has not refused to make plain, 35 How. 74. his deposition. Erie Railway Co. v. ChamNor can the adverse party to the action. id. 73. A motion to set aside an order appointing a referee to take the deposition of a witness under this section, can only be made by the witness. Erie Railway Co. v. Champlain, 35 How. 73. Or at least, the party moving to set aside the order for the examination of the witness must show that he is injured by the irregularity complained of. Brooks v. Schultz, 5 Rob. 656. The party obtaining the order appointing a referee should not be embarrassed by any motion of the adverse party to set it aside. Ramsey v. Gould, 39 How. 62; S. C. 8 Abb. N. S. 174; 57 Barb. 398. g. The examination. This section does not authorize a "fishing" examination to ascertain whether a person may not know something material. Fisk v. Chicago, Rock Island and Pacific Railroad Co. 3 Abb. N. S. § 402. [363.] (Am'd 1849.) When notice is necessary, it must be eight days before hearing. 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. a. Notice of motion for less than eight days is irregular. Rogers v. McElhone, 12 Abb. 292; S. C. 20 How. 441. This section does not authorize the shortening of the notice required by section 247. Lefferts v. Snediker, 1 Abb. 41. An objection to the length of the notice cannot be raised for the first time on appeal. It should be done on the hearing. Main v. Pope, 16 How. 271. b. Service of.-A notice of motion to set aside a judgment of divorce granted by default, etc., which was served on the attorneys for the plaintiff in the judgment nearly two years after the entry of judgment, and after they had settled with the plaintiff, had ceased to be his attorneys, had themselves dissolved partnership, and the plaintiff had married again, held, sufficient. Miller v. Miller, 37 How. 1. It must be served for the first day of the term, and be accompanied with copies of the papers on which the motion is to be made. Rule 27; President, etc. of Ogdensburgh Bank v. Paige, 2 Code R. 67. One signed by a defendant in person, while he has an attorney, may be disregarded. Halsey v. Carter, 6 Rob. 535. c. Withdrawing.-A notice of motion cannot be withdrawn without paying costs of the motion. Walkenshaw v. Perzel, 5 Rob. 648; S. C. 32 How. 310; 7 Rob. 606, sub nom. Walkinshaw v. Perzel. Yet where the motion includes two distinct matters, one may be withdrawn without payment of costs. Ib. d. Contents of.-The notice of motion should contain the particular grounds of the motion. Ellis v. Jones, 6 How. 296. Thus, to render a mere irregularity in the summons and copy of papers served available on a motion, it must be specified in the notice. American Flask and Cap Co. v. Son, 7 Rob. 233; S. C. 3 Abb. N. S. 333. e. Order to show cause may be granted ex parte. Graham's Pract. 688; Bloodgood v. Erie Railway Co. 51 Barb. 273. But it will not be granted as a matter of course. Androvette v. Bowne, 15 How. 75; S. C. 4 Abb. 440. If returnable at special term, it must be granted at special term, and not before a judge; and if returnable before a judge, it must be before the judge who made it. Hasbrouck v. Ehrich, 7 Abb. 76; Merritt v. Slocum, 6 How. 350. It cannot be granted for a time less than eight days, unless the papers on which it is founded show some reason therefor. Springsteen v. Powers, 4 Rob. 624. f. Appeal from an order to show cause cannot be taken to the general term, until a hearing has been had on the original order, or on a motion to vacate it. Bloodgood v. Erie Railway Co. 51 Barb. 273. g. Hearing. The party showing cause is entitled to open the argument, and to reply. Graham's Pr. 688; Blunt v. Greenwood, 1 Cow. 15; New York and Harlem Railroad Co. v. Mayor, etc. of New York, 1 Hilt. 563, 568. The relator holds the affirmative. People ex rel. Muir v. Throop, 12 Wend. 183. When it is claimed that the order is invalid because not shown to have been made at a regular adjourned special term, it will not be presumed that it was not regularly made. People v. Central City Bank, 35 How. 428, S. C. 53 Barb. 412. h. As to contents. If an order to show cause, the same rule applies as does to notice of motion. American Flask and Cap Co. v. Son, 7 Rob. 233; S. C. 3 Abb. N. S. 333. See ante (d), contents of notice of mo tion. i. Service of.-An order to show cause issued against a bank, is properly made on the vice-president of the bank. People v. Central City Bank, 35 How. 428; S. C. 53 Barb. 412. j. Priority.-Where one of the two ap plications for the appointment of a receiver— both made on the same day before different justices in different judicial districts-obtained the first judicial action, the first service of papers, the first granting the order, and the first perfecting of the appointment by the execution, approval and filing of the required bond, held, to precede the other, although the latter receiver first took actual possession of the property. People v. Central City Bank, 35 How. 428; S. C. 53 Barb. 412. The mere preparation and verification of the papers for the application cannot determine the question of priority. Ib. § 403. [364.] In actions in 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. a. Powers of a county judge out of court. 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 twelfth of May, one thousand eight hundred and forty seven, by the judges of the court of 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. 3 R. S. (Laws 1847, ch. 470, § 27), 306 § 32, 5th ed. See Laws 1865, ch. 413; and Laws 1871, ch. 551. b. Power to issue an injunction. A county judge has no power to issue an injunction order in an action in which the place of trial is out of the county for which he is judge, Eddy v. Howlett, 2 Code R. 76. See Chubbuck v. Morrison, 6 How. 367; Keeler v. Olin, 8 Abb. N. S. 449. A county judge has no power under the Code, to hear a motion, as such, in an action pending in the supreme court. Merritt v. Slocum, 3 How. 309; S. C. 1 Code R. 68; Rogers v. McElhone, 12 Abb. 292; S. C. 20 How. 441. § 404. [365.] (Am'd 1849.) In absence of julge at chambers, motion may be transferred by him 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 made. a. Motions in first district, when to stand over.-All motions noticed for chambers in the first district, if 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 udge on the consent of parties. Mathis v. Vail, 10 How. 458. b. Special proceedings, how continued-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 provisions is made by law for the con motion might originally have been tinuance 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 in the same county, 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. c. Supplementary proceedings. This applies to supplementary proceedings. Holstein v. Rice, 24 How. 135; S. C. 15 Abb. 307. See Cobb v. Harmon, 23 N. Y. (9 Smith), 148, 155; S. C. 29 Barb. 472. § 405. [366.] (Am'd 1849.) Enlarging time for proceedings in an action. 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. a. Application of this section is to the powers of a judge of the court at chambers, and not to the powers of the court. Haase v. New York Central Railroad Co. 14 How. 430; Traver v. Silvernail, 2 Code R. 96. b. General rule, when an act is to be done within a certain time.In such case, when the concurrence of the court is necessary, the party having done all that he is required to do, to obtain the decision of the court, the general rule is, that he is not to suffer through the court's delay; and if the court give their decision after the time is passed, it may be entered up as of the time when by law it ought to have been given. Clapp v. Graves, 9 Abb. 20; S. C. 2 Hilt. 317; 26 N. Y. (12 Smith), 418. c. Extension of time to make a case cannot be granted by a judge at chambers, after the ten days have expired; it must be by the court, on notice. Doty v. Brown, 3 How. 375; S. C. 2 Code R. 3; Sheldon v. Wood, 14 How. 18; S. C. 6 Duer, 679. As to the former practice, see Thomp son v. Blanchard, 1 Code R. 105; S. C. 3 How. 399; Savage v. Relyea, 1 Code R. 42; S. C. 3 How. 276; Adams v. Sage, 13 How. 18. d. Affidavit, copy of, should be perfect, including signature of counsel, jurat, etc. Littlejohn v. Munn, 3 Paige, 280. But it seems that the omission of the jurat in the copy served, does not render the proceedings irregular in those cases where the opposite party had an opportunity to inspect the original. Graham v. McCoun, 1 Code R. N. S. 43; S. C. 5 How. 353; Barker v. Cook, 16 Abb. 83; S. C. 40 Barb. 254; Rule 30. e. Service of. The provisions of this section in relation to the service of affidavits applies only to orders granted in actions enlarging the time within which any proceeding may be had, not to an order under § 292. Green v. Bullard, 8 How. 313. A party is entitled to relief on terms from a mistake, by which he has omitted to serve a copy order, or a copy of the affidavit on which the order was granted. Quinn v. Case, 2 Hilt. 467, 470. CHAPTER IX. Entitling affidavits. SECTION 406. Affidavits defectively entitled, valid. § 406. [367.] Affidavits defectively entitled.• It shall not be necessary to entitle an affidavit in the action; but an affidavit made without a title, or with a defective title, shall be as valid and effectual, for every purpose, as if it were duly entitled, if it intelligibly refer to the action or proceeding in which it is made. 66 a. Affidavits - title of.- An affidavit entitled "supreme court," instead of court of appeals, where the proceeding was in the latter, was held insufficient. Clickman v. Clickman, 1 N. Y. (1 Comst.), 611; S. C. 1 Code R. 98; 3 How. 365. But one entitled in the 'county court," on a motion for retaxation of costs, etc., in proceedings commenced before a county judge and brought into the supreme court by certiorari, is sufficient. People ex rel. Thompson v. Townsend, 6 How. 178. the objection that the affidavits are entitled in the wrong court, will be disregarded where they intelligibly refer to the action. Blake v. Locy, 6 How. 108; S. C. 1 Code R. N. S. 406. The entitling an affidavit in a suit (on which an order of arrest is founded), may be disregarded under § 176, as not affecting the substantial rights of the adverse party. Pindar v. Black, 4 How. 95; S. C. 2 Code R. 53. And See City Bank v. Lumley, 28 How. 397. This section does not help a notice of motion. Clickman v. Clickman, 1 Code R. 98; S. C. 3 How. 365, 1 N. Y. (1 Comst.), 611. Nor proceedings upon mandamus. People ex rel. Coleman v. Dikeman, 7 How. 124. The title of an affidavit embraces its entire heading, namely, the name of the court as well as the name of the parties; therefore an error in the name of the court, where it appears that the opposite party has not been misled by it, will be disregarded. Bowman v. Sheldon, 5 Sandf. 657. Where the deponent is a marksman, the jurat should state the reading of the affidavit to him, and his understanding of it. Haynes v. Powell, 3 Dowl. Pract. Cas. 599. As a venue is an essential part of an affidavit, every affidavit should contain one. Cook v. Staats, 18 Barb. 407, and cases there cited. CHAPTER X. Computation of time. SECTION 407. Time, how computed. § 407. [368.] Time, how computed. The time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded. a. Notice of trial.-In computing the time, upon service of notice of trial, the day of service is excluded, and the first day of the term is included. This section establishes a general rule as to such a case, notwithstanding the 256th section. Easton v. Chamberlin, 3 How. 412; Dayton v. McIntyre, 5 id. 117; S. C. 3 Code R. 164; Bissell v. Bissell, 11 Barb. 96. costs. b. Notice of the adjustment of - Service of notice on Saturday for Monday (intended to be a two days' notice), to settle and adjust costs, is not sufficient. Whipple v. Williams, 4 How. 28. c. Notice of motion. — A motion may be noticed for a day of the special term other than the first, if a sufficient excuse appear in the moving papers. Whipple v. Williams, 4 How. 28. Where the notice is less than a week, Sunday should be excluded. id.; Anonymous, 2 Hill, 375. Contra, McIntosh v. Great Western Railroad Co. 1 Hare, 329; Easton v. Chamberlin, 3 How. 412; Campbell v. International Life Assurance Society of London, 4 Bosw. 298. And where a notice was served on Wednesday for the following Monday, held, a good five days' notice; that the intervening Sunday could not be excluded, and that where the last day falls on Sunday, the day following is the last day of limitation. Taylor v. Corbiere, 8 How. 385. Notice served on the 14th for the 16th, is good as a notice of two days. Ball v. Mander, 19 How. 468; Columbia Turnpike Road v. Haywood, 10 Wend. 422. d. Notice of appeal from an order entered on the 27th of May, served on the 27th of June, was held to be in time; i. e., within thirty days. Gallt v. Finch, 24 How. 193. e. Computation of time. — In computing time, the rule is, whenever a whole day, and every moment of it, can be counted, then it should be; but whenever, if counted, the party would, in fact, have but a fractional part of it, it should not be. Phelan v. Douglass, 11 How. 193. See Pulling v. People, 8 Barb. 384; People v. New York Central Railroad Co. 28 id. 284. In the service of process, notices, etc., fractions of a day are not regarded. Columbia Turnpike Road v. Haywood, 10 Wend. 422. In computing statute time, the day on which the time begins to run is to be excluded; thus where an act is to be done after the expiration of thirty days, it cannot be done until the thirty-first. Judd v. Fulton, 4 How..298. Bills and notes falling due on Sunday, are payable on Monday. See Laws of 1847, ch. 370. f. Addit onal time to answer, granted by order, does not commence to run until the expiration of the time so extended. Schenck v. McKie, 4 How. 246; S. C. 3 Code R. 24; e. g., where the time to answer would expire on the 8th of October, and on the 1st of October an order was granted allowing twenty days additional time to answer, held, that the time to answer was thereby extended until the 28th of October. id. Contra, see Simpson v. Cooper, 2 Scott. 840. As to computing time for publication of legal notices, see § 425. 97 |