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special terms are held, the special rules for the regulation of those terms must be consulted, although as a matter of power it may be
order of the court.25
Hence the Appellate Division has power to hear any motion which may be made to the court, unless a statute requires it to be made at special term. But the present practice is generally to require all motions to be made at special term, which the special term has power to dispose of.26 The rules of court require that all motions be made at special term rather than at Appellate Division except those specially directed or permitted to be made elsewhere ; 27 and there is also an implied exception recognized by settled practice, of motions incidental to proceedings at the Appellate Division.
Thus a motion to modify an Appellate Division order, so as to make it express the real decision of the Appellate Division is properly made at Appellate Division.28
So a motion to dismiss an appeal to the Appellate Division from the Special Term or the order of a judge, must be made at Appellate Division, unless specially otherwise directed; 29 otherwise a judge might dismiss an appeal from his own decision. But a motion to dismiss an appeal from an inferior court on grounds apparent on the appeal papers, has been sustained at Special Term of the appellate court,30 although the Appellate Division to which the appeal is made, has the like power to dismiss.
So an application to modify or relax the terms or effect of an order made by the Appellate Division, should be made to the Appellate Division or at least to one of the Appellate Division justices. 31
25 People ex rel. Nichols v. Mayor, etc., of N. Y., 79 N. Y. 582. Comparo paragraphs 34, 53.
26 Matter of Barkley, 42 App. Div, 597, 59 N. Y. Supp. 742 (motion to confirm referee's report directed to be made at the Appellate Division). Strong e. Hardenburgh, 25 How. Pr. 438. (So held of a motion to open a default suffered on appeal at General Term, the motion being also for leave on terms to make a case and exceptions.) Brush v. Mullany, 12 Abb. Pr. 344. (So held of a motion to set aside a judgment and proceedings on which it was founded, had before a referee, on the ground that he tried the cause out of the county.)
Melville 1. Mathewson, 51 N. Y. Super. Ct. 506 (where a motion at General Term to open a Special Term decision was denied because the General Term * should exercise only an appellate jurisdiction”).
27 N. Y. Gen. Rules, No. 38. 28 Salmon v. Gedney, 75 N. Y. 479 ; below, as Salmon v. Allen, 11 Hun, 29. 29 Morrison v. Morrison, 16 Hun, 507; Harris v. Clark, 10 How. Pr. 415. 30 Griswold v. Van Deusen, 2 E. D. Smith, 178.
Other illustrations of this rule, and exceptions to it which have grown up in practice, will be noticed in connection with particular proceedings.
The court at special term may, on new facts, qualify or suspend the enforcement of an Appellate Division decision pending the consideration of the question at Appellate Division.32
And the affirmance at Appellate Division of a Special Term judgment, does not deprive the Special Term of its power to open the judgment and allow an amendment of the issue.33
44. Appellate division held by different judges.] — In accordance with the principle of the impersonality of the judicial power of a court, which has already been noticed,34 it is well settled that the power of the Appellate Division over its own decisions is not necessarily affected by the fact that the judges composing the Appellate Division have been changed.35
45. Proper county, and judge,- special provisions for ex parte orders.] — The New York Code, in prescribing the mode of obtaining ex parte orders in various cases, often mentions the judge: thus, Orders to show cause in general (injunctions are excepted) are to be applied for only “to the court or a judge thereof or a county judge of the county where the action is triable, or in which the attorney for the applicant resides.” 36 Injunctions are generally to be applied for to the court in which the action is brought, or a judge thereof, or any county judge. Arrest (except in ne excal) and attachment, to a judge of the court in which the action is brought, or to any county judge. Orders for service hy publication, to “a judge of the court or the county judge of
31 White 1. Jackson, 39 Misc. 218, 79 N. Y. Supp. 393 (motion for leave to plead anew after judgment overruling demurrer has been affirmed, to be made to Appellate Division).
32 Grav t. Green, 14 Hun, 18.
33 Born u. Schrenkeisen, 52 N. Y. Suner. Ct. 219: S. P., as to power after decision of Court of Appeals, Clark 1. Makin, 34 Hun, 345.
34 Paragraph 35.
35 Buckingham 1. Dickinson, 54 N. Y. 692; Spragtie r. Western Union Tel. Co., 64 N. Y. 658; Third Ave. R. R. Co. 1. Ebling, 100 N. Y. 98, 1 Cent, Ren. 178 (holding that leave to appeal to the Court of Appeals may be granted by General Term, though composed of different judges).
36 N. Y. Code Civ. Pro., $ 780.
the county where the action is triable.” Orders for security for costs to the court “or a judge thereof." 37
46. The same; general provisions for ex parte orders. ]— The practitioner must be guided by the terms of the particular statutory provision under which he is acting. Where there is no such direction the following general provision38 applies. “Where an order, in an action,39 may be made by a judge of the court, out of court, 40 and without notice, 41 and the particular judge is not specially designated by law, it may be made by any judge of the court, in any part of the State; 42 or, except to stay proceedings after verdict, report, or decision, by a justice of the Supreme Court, or by the county judge of the county where the action is triable, or in which the attorney for the applicant resides."
47. — in Supreme Court actions. — The result of the above and cognate provisions of the New York statute is that,
In actions in the Supreme Court ex parte orders, in the absence of any different designation in the statute, may be made —
(1.) By a judge of the Supreme Court in any part of the State, 43 even when the action is in the first district :44
(2.) By a county judge of the county where the action is triable, or in which the attorney for the applicant resides45 (except an order to stay proceedings after verdict, report, or decision).
37 Id., § 3272. Therefore a county judge has no power to make such an order in a Supreme Court action. Longstreet v. Hea rey, 21 Civ. Pro. Rep. 16.
38 N. Y. Code Civ. Pro., § 772. This does not apply to the N. Y. City Court. $ 327.
39 Motions resulting from, but not strictly “in," an action are distinguished in Phillips v. Wheeler, 67 N. Y. 104.
40 See paragraph 30.
42 Thus, an order in an action in the Supreme Court requiring the adverse party to appear before an officer and attend the examination of a witness before trial, is an order made out of court and without notice, and therefore under Code Pro., & 401 (containing substantially the same provision as Code Civ. Pro., § 772), can be made by any judge of the court in any part of the State. It is not an order to show cause. Bank of Silver Creek v. Browning. 16 Abb. Pr. 272, 24 How. Pr. 609.
The reason is, the Supreme Court, though organized in districts and counties, is one court having general jurisdiction throughout the State. Erisman r. Pidcock, 62 How. Pr. 327; People es rel. Post v. Grant, 50 Hun, 243, 3 N. Y. Supp. 142.
43 N. Y. Code Civ. Pro., 8 772, quoted in the preceding paragraph. People er rel. Post v. Grant, 50 Hun, 243, 3 N. Y. Supp. 142.
44 Hull r. Hart, 27 Hun, 21.
15 & 772 (above), and 8 241 as to county judges generally. If the power of a Supreme Court justice is taken away the power of the county judge to act in a similar case also falls. People ex rel. Parr v. Parr, 121 N. Y. 679. So a court commissioner may act in place of a judge in Wisconsin. Whereatt 0. Ellis, 65 Wisc, 639, 27 N. W. Rep. 630.
48. — in County Court actions.]— In actions in a county court, ex parte orders, in the absence of any different designation, can be made by the county judge of the county; or (except to stay proceedings) by the county judge of the county where the attorney for the applicant resides; or by a justice of the Supreme Court. 46
49. — qualification as to all actions. ]— But all these rules are subject to the qualifications (already indicated)—.
(1.) That the case be one in which the particular judge to make the order is not “specially designated by law;" 47 and
(2.) The restriction on the power of the county judge does not apply to any case in which the Code of Civil Procedure prescribes in general words, that a particular order may be made “by a county judge” or “by any county judge."'48
50. — in actions in the City Court of the City of New York.] - In actions in the City Court of New York (formerly the marine court), ex parte orders can only be made by a judge of that
51. Extent of this power of judge out of county, or of county judge.)- The power thus conferred on judges of other counties and of other courts to make ex parte orders, includes the power of the judge who has done so to vacate ex parte the order he has granted ;50 but it does not authorize him to hear the parties and vacate or modify it on a contested motion, even on an order to show cause granted by himself.51
46 N. Y. Code Civ. Pro., § 354. This provision applies also to special proceedings.
If it be deemed not exclusive of $ 772, then, in County Court actions, ex parte orders, except to stay proceedings after verdict, report, or decision, may be made by a justice of the Supreme Court. But the Special Term of the Supreme Court has no power to make an order in a County Court action. Edwards 1. Shreve, 83 App. Div. 105, 82 N. Y. Supp. 514.
47 $ 772, first clause. The principal proceedings excepted from this provision are noted in connection with the forms hereafter.
48 N. Y. Code Civ. Pro., 8 773. 49 N. Y. Code Civ. Pro., § 327.
50 Marks v. King, 13 Abb. N. C. 374, 66 How. Pr. 453. As to the reasonable promptness in applying for such a vacatur, see paragraph 33. Some special clauses as to provisional remedies will be noticed in due course.
52. Unauthorized county judge's order, disregarded.]—A county judge's order made in an action in a court other than his own, and in disregard of the foregoing restrictions as to who inay make such ex parte orders, may be disregarded. 52
53. County for motion on notice — in Supreme Court actions. ] - The New York statute63 provides that in other cases than tnose“ where it is specially prescribed by law54 that a motion may be made in the county where the applicant, or other person to be affected thereby, or the attorney resides," "a motion,'55 upon notice, 56 in an action in the Supreme Court, must be made within the judicial district in which the action is triable, or in a county adjoining that [that is to say, adjoining the county57] in which it is triable; except that where it is triable in the first judicial district, the motion must be made in that district; and a motion upon notice cannot be made in that district in an action triable elsewhere.” 58 This permission to move in an adjoining county
51 Although an ex parte order may be modified ex parte by the county judge who made it, yet he cannot grant such modification upon the return of an order to show cause why he should not grant such modification, because in that case it becomes a special motion (i. e., motion on notice -- contestet motion) which a county judge cannot entertain in an action in the Supreme Court. Parmenter v. Roth, 9 Abb. Pr. (N. S.) 385, Ct. of App., S. P., Town of Rochester v. Davis, 12 Abb. Pr. (N. S.) 270.
52 Askins v. Hearns, 3 Abb. Pr. 184; Chubbuck v. Morrison, 6 How. Pr. 367. 53 N. Y. Code Civ. Pro., § 769.
54 A motion which the statute authorizing it prescribes for differently, as where the statute requires it to be made where the action was commenced, etc., is also excepted. Sumner v. Osborn, 22 Hun, 13.
55 The word “motion," here as elsewhere in this connection refers to a motion made “in the action, while it is pending, or such as relates in some way to its pendency or procedure." Phillips 1. Wheeler, 67 N. Y. 104. A motion to modify a final judgment is controlled by the section. Matter of Haworth, 59 App. Div. 393, 69 N. Y. Supp. 843. So is a motion, after final judgment, to assess damages sustained by defendant from granting an injunction. Wilson 1. Dreyer, 65 App. Div. 249. A motion for leave to sue a receiver is in effect a motion in the action in which he was appointed. Matter of Commercial Bank, 35 App. Div. 224, 54 N. Y. Supp. 722.
56 The restriction does not apply to ex parte motions. Huli v. Hart, 27 Hun, 21.
57 Inglehart v. Johnson, 6 How. Pr. 80 (holding it not enough that the county adjoins the district). See also Matter of Haworth, 59 App. Div. 393, 69 N. Y. Supp. 843.
58 A motion to assess damages resulting from granting an injunction cannot be made in the first district when the action was brought in another district. Wilson v. Dreyer, 65 App. Div. 249, 72 N. Y. Supp. 578.