74. claim of privilege.]-The statutes defining the privilege of communications between husband and wife, attorney and client, physician and patient, and pastor and parishioner, at least in the form in which those rules are expressed in New York,29 apply to this proceeding. The privilege may be expressly waived by the client, patient, or parishioner, etc., as the case may be, if living;30 if not, it cannot be waived.31

75. — duty of the referee.]— The referee should not allow the examination to be extended beyond the limits indicated by the order or the papers on which it is founded. The statute does not contemplate an investigation of the merits of the action,32 nor a fishing examination,33 nor a discovery of books and papers. Cross-examination by the party against whom the affidavit is to be used is now allowed.35

34

The deposition must be taken by question and answer, and when taken, must be certified and delivered to the attorney for the party who procured the order, unless the order provides for a different disposition thereof.36

76.effect of affidavit.]- The affidavit when taken has no greater effect than an affidavit voluntarily made; and the party causing it to be taken is not obliged to use it,37 nor is the other. party entitled to do so in the absence of any condition to that effect in the order under which it was taken.

mony was calculated to impede the due course of justice, and was in contempt of the authority of the court." So held in imposing a fine both upon the witness and the attorney on motion to punish for contempt. Reynolds v. Parkes, 2 Dem. 399.

29 N. Y. Code Civ. Pro., §§ 831, 833-836.

30 N. Y. Code Civ. Pro., § 836.

So a physician who has once made an affidavit to facts derived in a professional capacity for use against his patient, may be compelled at the instance of the patient to make an affidavit upon the same subject, to be used upon a motion, as here, to resist an application to examine the defendant before trial. So held in Mason . Libbey, 1 Abb. N. C. 354.

31 Except within the limits prescribed by Code Civ. Pro., § 836.

32 Dauchy . Miller, 16 Abb. Pr. (N. S.) 100.

33 Fisk . Chicago, R. I. & P. R. R. Co., 3 Abb. Pr. (N. S.) 430; Wallace v. Baring, 2 App. Div. 501, 37 N. Y. Supp. 1078, 3 Anno. Cas. 16.

34 Id.

35 § 885.

36 N. Y. Code Civ. Pro., § 885.

37 Brooks . Schultz, 5 Robt. 656, 3 Abb. Pr. (N. S.) 124; Erie Ry. Co. v. Gould (above), (dicta).

77. Entitling papers.]—The practice as to entitling motion papers has already been stated.38

An error in this respect in the notice or in the order made, is not necessarily fatal if it did not mislead, but may be amended or disregarded in some cases.39

40

78. Stating justification for choice of county to move in.]— Although the court or judge may doubtless refuse to act upon a motion if the fact does not appear by the moving papers that the motion is made before the proper court or judge, or (in the Supreme Court) in a proper county, an order of the Supreme Court made in a proper place is not irregular because the fact of place of trial, etc., did not appear in the moving papers. Nor is a judge's order void because the motion papers do not show the facts of place of trial, or residence of attorney, etc., which gave the right to apply to such judge, if the facts existed; although, as an officer of special jurisdiction, a judge may well decline to grant an order on such papers; 11 and if he does grant it, it may be necessary to prove the facts in any proceeding to enforce such an order.

41

79. Disclosing ground of motion.]- If the ground of the motion be a matter which the party moved against should have an opportunity to explain or controvert, or meet by amendment, the motion papers must apprise him what it is. The reasons are (1) that the party moved against has a right to be enabled to put in counter affidavits,42 or may have a right to amend; 43 (2) that the

38 Page 39, paragraph 7.

39 In Matter of Commercial Bank, 35 App. Div. 224, 54 N. Y. Supp. 722, it is said that the character of a motion is not changed by entitling the motion papers "in the matter of," etc., where they should have been entitled in the action. See also Watts v. Nichols, 19 Wkly. Dig. 165 (holding that the objection cannot be first taken on appeal); Kellogg v. Coller, 47 Wisc. 649. Hazard v. Wilson, 3 Abb. N. C. 50 (entitling in wrong court disregarded). Entitling the notice of motion with the name of but the first party plaintiff, with the words "et al." is sufficient unless the adversary proves that he has been misled by a failure to name the other parties plaintiff. Jerauld Co. r. Williams, 7 So. Dak. 196. If the motion affects two actions it should be entitled in both. Parent v. Kellogg, 1 How. Pr. (N. Y.) 70; Kellogg v. Coller, 47 Wisc. 649.

40 Newcomb r. Reed, 14 How. Pr. 100.

41 Dodge r. Rose, 1 Code Rep. 123 (where a judge at chambers refused to grant an order on this ground).

42 Brower v. Brooks, 1 Barb. 423; s. c. as Brower v. Judson, 3 How. Pr. 243 (motion to strike answer from files denied because the papers did not disclose that the ground was omission to verify it).

43 Campbell v. Swasey, 12 Ind. 70; O'Connor v. Koch, 56 Mo. 253

convenience of the court, before which many motions may come at once, requires that the papers in each should bear a distinct. statement of the point in controversy; 44 and (3) the proper disposition of an appeal from an order often depends on what was the point presented to the court on the motion, a question which should not be left open for unprofitable controversy before the appellate court.

Where it is sufficiently obvious from the relief sought that there could be but one ground for granting such a motion, the court may treat the demand for relief as a sufficient indication of the ground.45

If the moving party has several grounds for his motion he must disclose all, or the order upon the motion will preclude him from moving anew for the same relief on those which he omits to specify.46

On a motion to set aside proceedings for irregularity the moving party must both state the grounds of his motion, and show affirmatively the defect or omission complained of.47

It is not enough that a copy of the irregular paper appears in the moving papers, if no reference to the irregularity relied on is inade.48

In the application of this principle it is to be observed that the adverse party has a right to know what grounds of fact, and what defects in the proceedings, if any, are relied on, but has not

44 It is not the duty of the court to search for or conjecture the cause or reason of a motion to strike out. Lucas v. Smith, 54 Ind. 530; s. P., Ellis v. Jones, 6 How. Pr. 296.

45 Per Duer, J., in Bowman v. Sheldon, 5 Sandf. 657.

46 Desmond t. Wolf, 1 Code Rep. 49, 6 N. Y. Leg. Obs. 389.

So in Pattison v. Bacon, 12 Abb. Pr. 142, 21 How. Pr. 478, the renewal of a motion to open a judgment taken by default was denied, the judge saying, "the additional matters which the defendant wishes to set up on the renewed motion were all known to him when the original motion was made. He should have stated all that was necessary at that time to secure his success.” Mills r. Thursby, 11 How. Pr. 114. Per curiam: In other words, he cannot bring forward his objections by instalments; such a course would lead to interminable vexation, delay, and expense."

66

47 Park v. Park, 80 N. Y. 156, where the court refused to entertain an objection not taken in the court below, to the effect that no order was made by any competent authority for the issuing of the attachment, although it contained an indorsement by the clerk that it was issued by the special order of the court. See paragraph 96 post.

48 Boyd v. Weeks, 6 Hill, 71 (Court of Errors); Wilson v. Wetmore, 1 id. 216. See also paragraph 96, post.

strictly a right to be informed what legal principles the moving party intends to invoke.49

The New York rule that the irregularity complained of must be specified in the notice or order to show cause, as well as appear in the papers moved on, is stated below.50

80. Mode of referring to other papers.]— When it is necessary in motion papers to refer to particular parts of other papers, care should be taken to identify the passage referred to, not merely by folio, or line, or page, nor by brackets or the like, in a particular copy, but rather by the number of the paragraph, or the initial and terminal words; for a reference merely by folio, etc., or by marking one copy, is liable to lose its significance on printing the record on an appeal.5

51

81. Excuse for delay.]- The papers on a motion founded on irregularity must show an excuse for delay if the motion be not made at the earliest opportunity and before taking any other step than one in resistance of the irregularity.52

53

82. Grounds for claiming preference on the calendar.]— When grounds for claiming a preference on the calendar exist the practice will be found to accord generally with the practice in obtaining a preference upon the trial calendar.54

83. Oath to merits.]— Motions before issue joined, made for the purpose of securing opportunity to join issue, and motions at any time involving request for delay or favor in making defense,

49 In Hicks r. Brennan, 10 Abb. Pr. 304, it was held that a notice of motion to set aside a judgment as improperly entered covered that defendant had entered it without authority, on plaintiffs assuming to discontinue the action without paying costs, whereas defendant should have moved to dismiss. In Freeborn v. Glazier, 10 Cal. 337, however, it was held that even a statute providing that defendant may apply to have an attachment discharged, on the ground that the writ was improperly issued," does not dispense with the necessity that a defendant making such motion should go on and specify the grounds, and show whereir it would be urged that there was impropriety. S. P. on motion for new trial, notice expressed in words of statute held not enough. Barnard v. Graham, 14 Ind. 322.

66

50 See paragraph 96, post.

51 The point seems a very trivial technicality, but more than one decision has turned on it. See, for example, Melcher v. Kreiser, 28 App. Div. 362, 51 N. Y. Supp. 249.

52 Lawrence v. Jones, 15 Abb. Pr. 110; Persse; etc., v. Willet, 14 id. 119; Axt r. Shankey, 8 N. Y. Supp. 803.

3 For the grounds in New York, see N. Y. Code Civ. Pro., §§ 789-792. 54 See Chapter XII, title, PREFERENCES.

should be supported by an oath to merits,55 unless an affidavit of merits has been already filed and served, in which case such filing and service must be shown by affidavit.56

84. Denial or disclosure of previous application.]- On making an application which is in substance or effect a renewal of a previous application, the moving papers ought to disclose the fact; and to secure this the New York General Rule No. 25 provides that: "Whenever application is made ex parte on affidavit to a judge or court for an order, the affidavit shall state whether any previous application has been made for such order, and, if made, to what court or judge, and what order or decision was made thereon, and what new facts, if any, are claimed to be shown. For failure to comply with this rule, any order made on such application may be revoked or set aside. This rule shall apply to proceedings supplementary to execution, and to every application for an order or judgment made in any action or special proceeding."

The disregard of this rule however does not render void an order granting the new application; nor give the adverse party a right to demand that it be vacated; 57 for the rule is for the protection of the court against renewals in the guise of a fresh motion. A disregard of the rule is good ground for denying the application,58 or, if not cured and the application be granted, renders the resulting order irregular, and liable, if moved against promptly, to be vacated, in the discretion of the court or judge; 61 who has, however, power to allow amendment, on the hearing of a motion to vacate on that ground, and thereupon deny the motion to vacate.

59

62

60

55 This is specifically required by N. Y. Gen. Rule 24, on applications for extension of time to answer or demur. Bingham v. Bingham, 1 Civ. Pro. Rep. 166.

56 N. Y. Gen. Rule 23.

57 Bean v. Tonnelle, 24 Hun, 353; Wooster v. Bateman, 4 Misc. 431, 24 N. Y. Supp. 112; Skinner v. Steele, 88 Hun, 307, 34 N. Y. Supp. 748; Pratt v. Bray, 10 Misc. 445, 31 N. Y. Supp. 365; Matter of Nat. Gramophone Co., 82 App. Div. 593, 81 N. Y. Supp. 853.

58 Gouraud v. Trust, 17 Hun, 578.

59 The omission to comply with that rule is an irregularity which must be taken advantage of on the first opportunity; delay to raise the objection until much labor and expense has been incurred, and the chance of a favorable result has been had, destroys the objection. Matter of Rogers, 9 Abb. N. C. 141; S. P., Schachne v. Kayser, 66 How. Pr. 395.

60 Cases under note 57, supra.

62 Kroszinski v. Wolkoweiz, 1 Monthly L. Bul. 90; Spring v. Gourlay, Id. 49..