B. NOTICING MOTION.

85. Limitations of the time for moving.]—Various regulations which require particular motions to be noticed within a specified period after a previous proceeding, will be stated in connection. with the respective motions affected thereby.

Double time is, however, allowed in some cases where the act which fixed the limited period was the adversary's service of a paper by mail.63

Where a motion has been noticed within the period limited for making such a motion (for instance, notice of a motion to strike out part of a pleading, given within the twenty days allowed for so doing) and the motion is denied and the period expires, then no new notice of a new motion will avail, but if the denial was on some ground not conclusive of the question, the remedy of the moving party is to make an application for a rehearing of the original motion on the original notice.

64

65

86. When to bring on motion.]— The time at which motions are to be brought before the court, is generally fixed by rule of court. In the New York Supreme Court (except in the first and second districts and Erie County) the General Rules require motions to be noticed for the first day of term, unless sufficient cause be shown in the affidavits served; 67 in which case the court may act on a notice for another day than the first.68 If the motion is brought on upon a different day than the first by order to show cause instead of notice, reason for naming a different day, as well as reason for short notice, must be shown in the affidavit to obtain the order to show cause.69 In the first district in the Supreme Court such motions may be noticed for any day during the term." 70 In the other courts of the State they may be made on any day designated by the judges thereof. In the Appellate

63 N. Y. Code Civ. Pro., § 798. See SERVICE, Article XXI of this chapter, paragraph 40, page 399.

64 Bowman v. Sheldon, 5 Sandf. 657, and see paragraphs 168-170 (below). 66 No. 21.

66 Using the word in its ordinary and restricted sense, exclusive of what are called enumerated motions.

67 N. Y. Gen. Rule No. 21. Days for hearings of motions in the Appellate Divisions are fixed by Rule No. 44, but are varied by local rules.

Whipple v. Williams, 4 How. Pr. 28.

Power v. Village of Athens, 19 Hun, 165.

70 Special Local Rules for the regulation of the Special Terms, No. II.

Division such motions may be noticed for any motion day in the term.71

87. Length of notice.]- Save in a few cases where a statute or rule of court prescribes a different period, notice of motion must, in New York State, be served at least eight days72 before the day indicated in the notice, except that if the attorneys for the respective parties reside or have their offices in the same city or village such notice may be a notice of five days; 73 if served by mail double that time.

In computing the time, the day of serving the notice of motion. is excluded, and that appointed by the notice is included.75 Thus an eight days' notice for a Monday must be served on or before the Saturday week previous; similar notice for a Tuesday, on or before the Monday week previous.

To grant a motion on a shorter notice against objection on that ground, is in itself error, irrespective of the merits of the motion; 76 unless the court has previously sanctioned short notice, by granting an order to show cause in less than the eight days." But an order made without the required notice, though irregular, is not necessarily void.78

88. Day.] Rules of court prescribing for what days motions must be noticed are usually strictly enforced, by reason of the necessity of system in arranging the business. The court has, however, power to relax them and hear a motion, upon excuse shown, at a time for which it could not be noticed as a matter of right; but cannot make an order thereon on default.80 In the State

71 N. Y. Gen. Rule No. 21. The motion days differ in the four departments. 72 N. Y. Code Civ. Pro., § 780. It is four days in the New York City Court with some exceptions; N. Y. Code Civ. Pro., § 3161. Particular motions in which shorter notice is allowable are mentioned in due course.

73 N. Y. Gen. Rule No. 37.

74 Code Civ. Pro., § 798.

75 Stat. Constr. Law (L. 1892, chap. 677), § 27, which repealed § 788 of the Code.

76 Rogers v. McElhone, 12 Abb. Pr. 292, 20 How. Pr. 441; Salters r. Shepperd, 11 Wkly. Dig. 189. If the objection be not made upon the hearing of the motion, it is waived. Main r. Pope, 16 How. Pr. 271; Krakauer r. Davis, 20 Misc. 351, 45 N. Y. Supp. 780.

77 See paragraph 104 (below), as to ORDERS TO SHOW CAUSE.

78 Pinckney . Hagerman, 4 Lans. 374 (aff'd, 53 N. Y. 31, where this was conceded). See other cases in note 81 at p. 88 of this volume.

79 N. Y. Gen. Rule No. 21, as to non-enumerated motions; see also local rules.

80 Matter of Argus Co., 138 N. Y. 557, 30 Abb. N. C. 381; Hatch r. Andrews, 1 Monthly L. Bul. 59; Vernovy v. Tauney, 3 How. Pr. 359.

of New York the practice is to take an order to show cause, if excusing circumstances prevent noticing for the regular day, and upon such an order default can be taken.

81

Where there is no regulation or settled practice fixing a motion day, the proper method is to notice motions for the first day of term or sitting of the court; and, if circumstances prevent so doing, to state in the moving papers the excuse for moving on a later day. In case of a deviation by the moving party from the rule or usage requiring notice for the day fixed, it rests in the sound discretion of the court to refuse to hear the motion, or to deny it, or to consider the offered excuse, and hear the parties, or give leave to notice anew.

-82

89. Consent in lieu of notice.]- The consent of a party, to the granting of the proposed relief or the entry of the proposed order, if given in writing signed by his attorneys (or if he has none, signed by himself and duly acknowledged), will supply the omission of notice, if the party be sui juris. If he is not, ordinary formal orders incidental to the progress of the cause, and not affecting the merits nor impairing the right of trial of the merits, may be made on the consent of the guardian ad litem or attorney.

It is the better opinion that consent of counsel as distinguished from that of the attorney of record, is not enough to justify an order, unless the consent be given in open court, by counsel then acting in the conduct of the cause in the matter in which the consent is given, in which case counsel's consent is enough if the attorney of record be absent, or be present and not objecting. 85

81 Mistaking, by forgetting, the first day of term,- Held, a sufficient excuse for not noticing for the first day. Bayard v. Malcom, 3 Cai. 102; s c., Col. & C. Cas. 456. Misapprehension of the rule allowed as an excuse. Lusher v. Walton, 1 Cai. 150; s. c., Col. & C. Cas. 206. Absence of attorney not an excuse. Ogdensburgh Bank v. Paige, 2 Code Rep. 67. See also Whipple v. Williams, 4 How. Pr. 28; Ogdensburgh Bank . Paige, 2 Code Rep. 67. But the question of excuse is so much under the discretion of the court, and the local usages of practice, that no case is of much value as a precedent. Where the reason of not noticing for the first day appeared on the record, it was held that no affidavit in excuse need be made. Kane v. Scofield, 2 Cai. 368; s. c., Col. & C. Cas. 414.

82 See, for instances, Jackson ex dem. v. ——, 2 Cai. 259; Pintard v. Ross,

2 Johns. 186; Fink v. Bryden, 3 id. 244; Matter of Argus Co., 138 N. Y. 557. 83 See STIPULATIONS.

84 See page 2 of this volume.

85 See Abbott's Trial Brief for civil jury cases, 2d ed., p. 40, § 34; Cox v. N. Y. C., etc., R. Co., 63 N. Y. 414.

87

C. CONTENTS OF NOTICE.

90. Entitling.]-A notice of motion made in an action should be entitled in the action; 86 otherwise of a notice of motion to initiate a special proceeding, such as notice of an application for a mandamus. But this requirement is satisfied if the notice be indorsed upon or written at the foot of a paper in the cause which is duly entitled, and which is referred to in the notice in such a way as to identify the cause and inform the recipient.ss

91. names of parties.]—It is proper for the notice of motion to be entitled with the names of the parties, or the first on cach side; and if there are several causes between the same parties, with the number of the cause intended, as indicated in what has been said under CAPTIONS.89 Mistakes in the names in the title will not vitiate if the party was not misled, and the paper is not such as evidently may mislead.90

92. Designating day.]-A notice of motion is not to be disregarded because of an obvious mistake in the designation of the return day. The question is whether it misled or not.92

91

86 Paddock v. Palmer, 32 Misc. 426, 66 N. Y. Supp. 743. Even after the death of a party. Davis v. Richards, 2 Monthly L. Bul. 97 (motion denied for lack of title in the moving papers). See article on CAPTIONS, supra.

87 See 2 Abb. Pr. (N. S.) 78. But to entitle as though the proceeding was pending is not ground of objection. People ex rel. v. Board of Canvassers of Oneida Co., 25 Misc. 444, 55 N. Y. Supp. 712. Entitling in an action, instead of in a separate special proceeding, does not deprive the court of jurisdiction. Wetmore v. Wetmore, 44 App. Div. 52, 60 N. Y. Supp. 437. 88 See Hawley v. Donnelly, Paige, 415 (dictum). But the provision of N. Y. Code Civ. Pro., § 728, as to defects in the title of an affidavit not being fatal, does not apply to a notice of motion. Clickman v. Clickman,

1 N. Y. 611, 3 How. Pr. 365, 1 Code Rep. 98.

89 Pages 37-39 of this volume. Under the code procedure the old usage of inverting the names in the papers on a motion by a defendant, and adding "impleaded, etc.," after his name, if there are other defendants not moving, is obsolete; the convenience of having all the papers in a cause entitled alike being found paramount.

90 Quick v. Merrill, 3 Cai. 133; Bowman v. Sheldon, 5 Sandf. 657. But in Sandland v. Adams, 2 How. Pr. 98, an affidavit of merits of defendant entitled Edson Adams ads. John Sunderland, the proper title being John Sandland v. Edson Adams, was held not entitled in the suit.

91 Wolfe v. Horton, 3 Cai. 86; Batten v. Harrison, 3 Bos. & P. 1 (error in naming wrong day of week with right day of month, disregarded). Bander r. Covill, 4 Cow. 60 (error of 3d Monday, instead of 3d Tuesday of November, disregarded).

92 Id. Glenny v. Langdon, 94 U. S. 604 (reinstating cause because dismissal on such notice was improvident). Matter of Flushing Ave., 101 N. Y. 678.

A notice of motion not designating any time for hearing is insufficient and irregular. A notice specifying a later day in case the court cannot hear the motion on the day first mentioned is irregular.93 It cannot be in the alternative, but must specify one. certain time only, although it may properly add " or as soon thereafter as counsel can be heard." This, however, is implied, for business not reached on the day noticed stands over of course; hence the omission of such clause does not vitiate.95

94

93. Stating where or before whom.]—If the application is to be made to the court, the court and term should be named. If to a judge as out of court,the particular judge better be named, unless he is the only judge of the court, when he may be designated by his office; for instance, "before the county judge of Erie county," so that the party receiving the notice may distinctly understand how the application is to be made. It will not, however, vitiate the notice of a motion out of court to refer to the court or term if the judge be so specified as to show that the motion is to be made before him.96 Confusion resulting from naming both judge and court may be disregarded if the party is not substantially misled.97

94. Place.]-If the motion is before a judge as out of court the place must be stated. If before the court, an omission to name the place will not vitiate, for it is notorious; 98 and an error in naming it will not vitiate if the party be not misled.

95. Stating on what papers.]- The party against whom a motion is made is entitled to know upon what papers the moving

93 Crane v. Crofoot, 1 How. Pr. 191 (motion denied with costs on account of this irregularity, but the better practice would be to disregard the irregularity if it had not misled).

94 Mathis v. Vail, 10 How. Pr. 458; Anon, 1 Johns. 143.

Where the return day proved to be a legal holiday, and the motion was heard the next day, held that failure to move to vacate promptly was a waiver. Re Flushing Ave., 101 N. Y. 678, 5 N. E. Rep. 561.

95 Anon., 1 Johns. 143 (holding a motion sufficient which omitted those words).

96 People v. Sessions, 10 Abb. N. C. 192.

In an order to show cause, the words "or one of the justices," inserted after "before me," held surplusage. Rogers v. Baere, 1 Monthly L. Bul. 45. 97 Id.; Yale r. Edgerton, 11 Minn. 271; Bates v. United Life Ins. Assn., 22 N. Y. Supp. 626, 52 St. Rep. 86.

98 Bodwell v. Wilcox, 2 Cai. 104, Col. & C. Cas. 367.