out of the district is not contained in the rule allowing orders to show cause."

59

60

The county designated in the summons and complaint as the place for trial is the one where "the action is triable" within the meaning of the above rule, unless and until there has been a change of place of trial to another county, and even then for the purposes of the place of hearing a motion to set aside an order changing the place of trial, or an appeal therefrom, the place of trial is deemed unchanged."1

54. limits of the foregoing statutory restrictions.]- The restrictions of this section 769, as to orders on notice in Supreme Court actions, are construed as applying only to motions made in an action, and made either while it is still pending, or relating in some way to its pendency or procedure therein.62

So that a motion by a client to compel his own attorney to sign a substitution might be entitled "in the matter of the application," etc., and therefore it is not controlled by this section, but may be made where the attorney resides. 63 And after judg ment had in one county, proceedings to enforce the judgment in a different county may be met by motion in that county; although the motion papers ought to be filed in the county where the action was triable.

Where one motion is to be made in several actions, as for in

59 N. Y. Gen. Rule No. 37. See paragraph 106, post.

60 Askins v. Hearns, 13 Abb. Pr. 184; Chubbuck v. Morrison, 6 How. Pr. 367. Thus an order of reference and consent that the referee sit in another county, is not a change of "the county where the action is triable" within this rule. Wheeler v. Maitland, 12 How. Pr. 35; Brush v. Mullany, 12 Abb Pr. 344. After a cause has been removed to the U. S. Circuit Court, and may therefore no longer be practically triable in the county where the place of trial was laid, a motion to vacate (in the State court) an order made ia that county before removal, may properly be made in that county. Erisman v. Pidcock, 62 How. Pr. 327. Where the summons and complaint are defective in not fixing a place for the trial of the action, the defendant may move in the district where he resides, or in that in which plaintiff resides. Hotchkiss v. Crocker, 15 How. Pr. 336. The reason is that the place of trial ought to

be in one of those counties.

61 N. Y. Code Civ. Pro., § 989.

62 Phillips v. Wheeler, 67 N. Y. 104; Wilson v. Dreyer, 65 App. Div. 249, 72 N. Y. Supp. 578. But a motion for an extra allowance in addition to costs, is within the restriction. Hun v. Salter, 92 N. Y. 651.

63 Cunningham v. Widing, 5 Abb. Pr. 413; Matter of Barkley, 42 App. Div. 597, 59 N. Y. Supp. 742.

64 Phillips t. Wheeler (above cited); Curtis v. Greene, 28 Hun, 294.

stance to consolidate separate causes,65 or where a sheriff applies for directions as to applying moneys in his hands to judgments recovered in several different counties not within the same district, nor adjoining, this restriction does not apply, and the motion may be made in the county most appropriate upon general principles.

A motion made in the proper county may by consent be heard and determined in any county in the State, and where it could not otherwise have been properly made.

67

55. Statute controls rules.]—An application which the statute requires to be made before or to a particular court is to be there made, notwithstanding that the judge who held the term when the previous proceeding was had, is elsewhere.68

56. power of court to disregard the statute.]- There is respectable authority for the position that this restriction on the place of making motions, upon notice in Supreme Court actions, being a legislative restraint of the constitutional jurisdiction of the Supreme Court, does not impair the power of the court, but only qualifies its duty. Clearly, if no objection is made by the party moved against, an order made in disregard of it will be effectual until vacated or reversed.69

57. Where to move to vacate order made in wrong place.]— The general rule of public policy which precludes moving before one judge or a court held by one judge, to vacate an order made by another, or at a term held by another, does not apply to a notion to vacate an order because made in the wrong place. The court in any county where the motion should properly have been

Percy r. Seward, 6 Abb. Pr. 326.

66 Phillips r. Wheeler, 16 Abb. Pr. (N. S.) 242, 2 Hun, 603, and 6 Sup. Ct. (T. & C.) 306; aff'd on other grounds in 67 N. Y. 104.

67 Rice t. Ehle, 65 Barb. 185 (rev'd on another ground in 55 N. Y. 518). And the order thus made by consent in a county other than that designated by the Code, is reviewable as if it were made in the proper county. Id.

es Hun r. Salter, 92 N. Y. 651 (holding in consequence that even a rule of court requiring application to be made before the same judge did not alter the case, but was in consequence inoperative under the circumstances).

An order in violation of this clause is not therefore void, because the Supreme Court has by the Constitution a general jurisdiction. Blackmar v. Van Inwager, 5 How. Pr. 367; Geller v. Hoyt, 7 How. Pr. 265, 267; Pinckney . Hagerman, 4 Lans. 374 (aff'd, 53 N. Y. 31, where the point was conceded). As to waiver by failing to object, see Cowenhoven v. Ball, 118 N. Y. 231.

made has power to vacate an order made by any judge or term in a county where it could not properly be made.

Hence an application on notice, to vacate an order made in a wrong county, must be made not in such wrong county, but in some county in which a motion in such an action may properly be made.70

58. Appeal as affecting place to move.]- Notwithstanding an appeal to another court, the proper place to move to open or to modify or cancel the record of the court below, or to make it conform to the actual decision, is the court below; although it may also be necessary to apply to the appellate court to allow this to be done, and to send back the return for the purpose.

After the determination of the cause by an appellate court, the court below have no power upon motion directly to annul or modify the judgment entered as the result of the appeal, nor even set it aside merely to enable the plaintiff to proceed anew ;72 but this does not preclude the lower court from opening the judgment on grounds consistent with the law of the case as established by the appellate court, and allowing an amendment to the issues, nor a new issue to be made by supplemental pleading;73 nor does the affirmance of an order denying a motion preclude the court below from granting leave to renew it on further facts.74

IV. MOTION PAPERS.

A. IN GENERAL.

75

59. Two methods of moving.]— In making motions on notice, the practice in some of the State courts, as in New York, is to serve on the adverse party written notice of intention to move,

70 Attrill v. Rockaway Beach Improvement Co., 25 Hun, 376; N. Y. Code Civ. Pro., § 769.

The rules peculiar to provisional remedies are to be noticed in due course. It was held in Bangs v. Selden, 13 How. Pr. 374, that where the judge in the county from whence the action had already been removed, refused to entertain a motion to vacate his order, on the grounds that the removal took away his power, and that if it had not, vacatur was unnecessary, the court in the county to which it had been apparently removed could entertain the motion, as there was no other alternative.

71 Nat. City Bank v. N. Y. Gold Exch, Bank, 97 N. Y. 645, and cases cited. 72 Drake . N. Y. Iron Mine, 38 App. Div. 71, 55 N. Y. Supp. 920. 73 Clark v. Mackin, 34 Hun, 345.

74 Riggs v. Pursell, 74 N. Y. 370.

75 As to petitions see Article XVIII, this chapter.

at a time and place named, for specified relief; and in this notice to indicate the papers on which the moving party relies. In some other States the practice is to file with the clerk a written statement that the party moves the court for such relief, and to give the adverse party, in advance of the hearing, a copy of this statement. In the former method a motion may be defined as an oral request to the court, founded usually on written evidence, and preceded by a written communication to the adversary, warning him that the application will be made; and the order of the court, with this written notice and the affidavits, etc., attached, pleadings referred to, etc., make the record. In the other method, the written statement filed, which is a narrative suitable for the record (thus: And now comes A. B., attorney for C.' D., and moves the court that, etc.), is called the motion;76 and, when notice is required, written notice must be given, which is usually done by serving a copy of the "motion," so called, with an indorsement or other communication stating the time and place when it will be presented.

The principles which govern the substance of the moving papers, and the proceedings thereon, are the same in either case; and in stating those principles here, illustrations are drawn freely from cases arising under either mode.

60. Evidence.]—If a motion on notice is founded purely on the record, or some part of it, as for instance, a motion for judgment upon a pleading as frivolous," no affidavit is necessary. If founded in any degree on matter outside the record, such matter should be supported by written evidence.78 For this purpose common law evidence is not required.79 Affidavits (the requisites of which have been already stated),so documents acknowledged,81 76 Motions must be in writing. Hay v. The State, ex rel., etc., 58 Ind. 337. Contra, Wallace v. Lewis, 9 Mont. 399, 24 Pac. 22; People v. Ah Sin, 41 Cal. 645.

77 Darrow v. Miller, 5 How. Pr. 247; Beal v. Union Box Paper Co., 4 Civ. Pro. Rep. 18.

78 Shellenberger v. Ward, 8 Iowa, 425 (non-residence no excuse); Kelly's Application, 10 Abb. Pr. 208.

S. P.,

79 Thus where a referee stated facts to a party in respect to an irregularity in his report, but declined to make affidavit to them unless they should be denied by the other party, and the former moved against the irregularity upon affidavits stating such information, held, that this was sufficient proof of the facts to put the other party to a denial. Shearman v. Justice, 22 How. Pr.

241.

So Page 11 of this volume.

81 Page 2 of this volume.

83

documents or copies, stated by affidavit to be originals or to be copies,82 and certificates of officers of the same court, and returns of officers of the court upon its process, are competent.

84

The unsworn statements of counsel may, as against a party who appears on the motion and does not object, be treated as evidence for the purposes of the motion.85

If it be desired to take oral testimony, or to cross-examine the adversary's witnesses, the proper course is to adduce the best written evidence one can, and on the hearing ask a reference.

61. Compelling affidavit for motion- statutory power.]- By N. Y. Code Civ. Pro., § 885, as amended in 1901, it is in substance provided that when any party intends to make or oppose a motion in a court of record, and it is necessary for him to have the affidavit or deposition of a person not a party, who has refused to make an affidavit, such court or a judge thereof may, by order, appoint a referee to take the deposition of such person. At least one day's notice of the application must be given to the attorney for the opposite party. The person to be examined may be subpoenaed and compelled to attend as upon the trial, and may be cross-examined by the party on whose attorney the notice has been served.

The proceeding is not directed against the adverse party, but is merely compulsion against a witness to require him to make what in effect is nothing more than a voluntary affidavit.86

62. — what is a motion.]— In the application of this section, it is held that the settlement of a case is not a motion within the section; an application for judgment in foreclosure is a motion

82 Page 43 of this volume. 83 Page 41 of this volume. 84 Page 41 of this volume.

85 Elliott v. Plattor, 43 Ohio 198, 1 West. Rep. 27. In such case the fact admitted ought to be recited in the order.

86 Where the person may be compelled to give testimony by subpoena or order of court, as in contempt proceedings under Code Civ. Pro., § 2280, the court will deny an application under this section. People ex rel. Tuell v. Paine, 92 App. Div. 303, 86 N. Y. Supp. 1109. The remedy applies only to civil cases. People v. Squire, 3 N. Y. St. Rep. 194. For the earlier history of this remedy, see Cockey v. Hurd, 14 Abb. Pr. (N. S.) 183, 45 How. Pr. 70, 36 N. Y. Super. Ct. 42; Brooks v. Schultz, Abb. Pr. (N. S.) 124, 28 N. Y.

Super. Ct. (5 Rob.) 656.

87 Kelly v. Weber, 4 Monthly L. Bul. 3.