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by an insolvent for a discharge under the two-thirds' act33 or to be exempted from arrest or discharged from imprisonment on surrendering all his property, 34 and the application for appointment of trustees of the property of a convict. 35
Such also were applications for peremptory mandamus, and applications for certiorari, until N. Y. Code Civ. Pro., SS 2070, 2128, required notices of motion in all cases where shorter time is not prescribed by order to show cause. Such, also, in substance are still alternative writs of mandamus, and alternative writs of prohibition.36
In almost, if not quite all such cases, an order to show cause is the court's process, and is jurisdictional; it is not subject to the rules below stated as to orders to show cause on short notice, for the purposes of an ordinary motion. 37
105. Orders to show cause —as short notice of motion.]38_ In other cases than such as are above described, orders to show cause are nothing more than a notice of motion, with a judicial sanction for the notice being short, or the motion being brought on at a different time than it otherwise could.39
In the absence of any statute, or general rule of court to the contrary, the inherent power of the court over its own proceedings enables the court, or a judge having power to hear a motion, thus to sanction short notice, by granting to the moving party an eie parte order requiring the party against whom he desires to move to show cause at a time and place specified, why the desired relief should not be granted.40
Where, as in New York, the power to grant short orders to show cause in any motion, is conferred or expressly established
23 N. Y. Code Civ. Pro., § 2164.
36 An order requiring a person to do the act or show cause at a specified time and place why a peremptory mandamus should not be granted, takes the place of a notice and is to be deemed an application for a mandamus. People er rel. Crouse v. Supervisors, 70 Hun, 560, 24 N. Y. Supp. 397.
37 Matter of Quick, 92 App. Div. 131, 87 N. Y. Supp. 316.
38 An order to show_cause returnable in more than eight days was held proper in Matter of Ferris, 37 Misc. 606, 76 N. Y. Supp. 159; compare Stryker v. Churchill, 39 Misc. 579, 80 N. Y. Supp. 588.
39 Grossman v. The Supreme Lodge, 22 N. Y. St. Rep. 522, 16 Civ. Pro. 215.
40 Matter of Filley, 20 N. Y. Supp. 427, 47 St. Rep. 428 (8 780 not apply. ing to Surrogates' Courts).
by statute, 41 a general rule of court prescribing a longer notice for motions of a particular class, does not impair the power. 42
106. Who may make orders to show cause; and where returnable.]— The power of a court or a judge before whom a motion is to be made to shorten the time or notice, by granting an order to show cause has been extended by amendment of 1890 to enable a county judge of the county where the action is triable, or the attorney for the applicant resides, to require a party to show cause before a court other than his own.43 After some fluctuation, 44 the New York rule now is, that, except in the first judicial district, every order to show cause as a short notice of motion must be returnable before the judge who grants it, or at a special term appointed to be held in the district in which the action is triable. 45
In the first district an order to show cause may be made by the court or by a judge of the court in which the action is pending, or a county judge of the county where the applicant's attorney resides; a judge of the court may make such an order returnable before the court, or before another of its judges; or, if returnable before himself, it may be continued before another such judge. 46
41 N. Y, Code Civ. Pro., & 780. Even an express provision of the Code requiring notice of at least a specified length (e. g., § 1219) yields to the general provisions of section 780 and permits a shorter time to be substituted by an order to show cause. Cit. Sav. Bank v. Bauer, 49 Hun, 238, 1 N. Y. Supp. 450.
42 People ex rel. v. Nichols, 79 N. Y. 582.
43 N. Y. Code Civ. Pro., $ 780, as amended in 1890, superseding Larkin t. Steele, 25 Hun, 254. N. Y. Gen. Rule No. 37. The granting of an order to show cause by a judge not entitled to make it is an irregularity which is waived by appearing and failing to raise the objection, and participating in the hearing of the motion on the merits. Conant v. Am. Rubber Tire Co., 37 Misc. 129, 74 N. Y. Supp. 409.
44 By section 402 of the Code of Procedure, it was provided that “the court or judge” may, etc., and under this it was held that a judge out of court could not make an order to show cause returnable before another judge nor before the court. Merritt v. Slocum, 6 How. Pr. 350; Hasbrouck 7. Ehrich, 7 Abb. Pr. 76.
The revision of the statute in the Code of Civil Procedure, 780, changed the phrase to “the court or a judge thereof."
By the amendment of 1890 to Code Civ. Pro., $ 780, a county judge has been given authority to make the order within the limitations stated in the text.
45 N. Y. Gen. Rules No. 37. A judge, or Special Term, of the Supreme Court in any part of the State may grant the order returnable before a Special Term ct the district wherein the cause is triable. People ex rel. Crouse t. Supervisors, 53 N. Y. St. Rep. 798, 70 Hun, 560, 24 N. Y. Supp. 397.
46 Code Civ. Pro., § 26. Where an order made by a judge is returnable in the alternative —"before me or one of the justices of this court," the latter clause may be rejected as surplusage, if the parties actually appear before
To avoid confusion, an order to show cause, if returnable before the court, will avoid naming a judge; if returnable before a judge, it will not mention the court, except as means of identifying the judge, and should mention the place or court room rather than the term he may be holding. *7
In practice almost all contested motions in actions are made re turnable before the court. 48
107. Length of time.]-Within the limits here stated, the power to grant an order to show cause as a short notice of motion, is discretionary; the discretion exercised in granting such an order is reviewable by the court (including, of course, the appellate branch),"9 but not by appeal to the court of last resort. 50
108. Necessity should be sworn to.]— The same reasons of convenience in the conduct of business that fix motion days and prescribe the length of notice of motion, forbid the granting of orders
the judge who made the order. Dresser v. Van Pelt, 15 How, Pr. 19; Rogers 0. Baere, 1 Monthly L. Bul. 45. All motions upon notice in the first district (embracing, of course, applications upon orders to show cause) must under the local rules be made returnable before Part 1 of the Special Term.
47 See paragraphs 93 and 94.
An order to show cause in a special proceeding expressed to be returnable “ before the county judge” is returnable before the successor of the incumbent who granted it if the term of office of the latter expires before the return day. Gamman v. Berry, 34 Hun, 138; Code Civ. Pro., $ 52.
48 This is necessary in the first district under local rules requiring all contested motions to be heard by the Special Term, Part 1.
49 Power v. Athens, 19 Hun, 165. So, of an appeal from an order of a judge of the City Court of New York to the Appellate Term. N. Y. Code Civ. Pru., $3189.
50 Sixth Avenue R. R. Co. v. Gilbert Elev. R. R. Co., 71 N. Y. 430. That an order to show cause is not irregular under Rule 37 as now existing, because returnable in more than eight days, was held in Matter of Ferris, 37 Misc. 606, 76 N. Y. Supp. 159. An order directing that an act be done, or that the person to whom it is directed show cause, etc., may be made returnable in more than eight days. Thomas v. Whitelegge, 14 N. Y. Supp. 779, 39 St. Rep. 89.
Under N. Y. Gen. Rule No. 67 an order to show cause, if made by a judge out of court, and returnable in less than two days, is irregular if it contains a stay of proceeding of sale under a judgment in partition or foreclosure. Asinari v. Volkening, 2 Abb. N. C. 454; but the irregularity is in the stay, not in the order as a notice of motion. See reasoning in People ex rel. Mayor, etc. v. Nichols, 79 N. Y. 582.
An order returnable on Sunday is a nullity. Arctic Fire Ins. Co. v. Hicks, 7 Abb. Pr. 204. It would not be a nullity, but the motion based thereon would merely stand over to next day, if returnable on a legal holiday. Re Flushing Ave., 101 N. Y. 678; Berthold v. Wallack, 14 Misc. 55, 35°N. Y. Supp. 208.
to show cause save in exceptional cases when reasonable necessity for short notice is shown.51
For this reason the New York General Rules provides that an order to show cause used as a short notice of motion “shall in no case be granted unless a special and sufficient reason for requiring a shorter notice than eight days shall be stated in the papers presented, and the party shall, in his affidavit, state the present condition of the action, and whether at issue, and, if not yet tried, the time appointed for holding the next special or trial term where the action is triable.'
109. Restriction on delay. ]— The abuse of orders to show cause by neglecting to serve them as promptly as possible, makes it important that such an order should contain a restriction on the power of the party obtaining it, to shorten notice by delaying service. The convenient method of doing this is to qualify the order by a clause to the effect that service a specified number of days before the return shall be sufficient.
It is for this purpose that the New York statute authorizing orders to show cause, 53 which however only applies in the Supreme Court, the New York City Court, and the County Courts,54 re quires that the order shall contain a direction that service thereof less than eight days before it is returnable shall be sufficient. 55 But an admission of due service is a waiver of the objection to the lack of such a clause. 56
51 See Androvette r. Bowne, 4 Abb. Pr. 440, 15 How. Pr. 75; Springsteen r. Powers, 4 Robt. 624.
52 No. 37. Compliance with the rule will be required. See Proctor v. Soulier, 82 Hun, 353, 31 N. Y. Supp. 472; Stryker v. Churchill, 39 Misc. 578, 80 N. Y. Supp. 588; Cole 1. Smith, 84 App. Div. 500, 82 N. Y. Supp. 982; Sanger v. Connor, 95 App. Div. 521, 88 N. Y. Supp. 1054. The objection cannot be raised for the first time upon appeal. Austrian Bentwood Furn. Co. v. Wright, 43 Misc. 616, 38 N. Y. Supp. 142. But if properly raised below, it is reversible error to overrule. Schiller v. Weinstein, 45 Misc. 591, 91 N. Y. Supp. 76.
An appeal from the order entered upon the decision of the motion brings up for review the order to show cause upon which the motion was based. Proctor v. Soulier, 82 Hun, 353, 31 N. Y. Supp. 472.
53 N. Y. Code Civ. Pro., $ 780.
55 In Suydam v. Belknap, 1 Monthly L. Bul. 41, Lawrence, J., held that the omission of a formal clause to this effect may be supplied by amendment nunc pro tunc, on the hearing, to meet the preliminary objection to want of eight days' notice; and this is doubtless sound where (as was probably the fact in that case) the order is promptly served as soon as made. It should be otherwise where service is delayed.
56 Anon., 3 Abb. N. C. 51, note. See article on ADMISSIONS, p. 9, supra.
110. Other requisites.]— In other respects an order to show cause, used as short notice of motion, must contain all the requisites of a notice of motion, including the disclosure of the grounds therefor, the specification of the irregularity if any, 57 and the statement of desired relief.
111. Legal effect of order to show cause.]— Granting an order to show cause, though it may be equivalent to leave to make the motion, does not indicate any opinion on the merits of the application ; 58 nor does it affect the rights of the parties in respect to the order in which they should be heard upon the motion. He who obtains the order is the moving party, and as such entitled to open and close the argument.
E. SERVING. 112. Copies of papers on which motion is made.]— The notice of motion must be accompanied with copies of the affidavits and other papers, if any, which are relied on in support of the motion. But this rule does not require service of papers which have been already, and within a reasonable period, served in the cause on the party to whom the notice is given, or so served by
57 Garner v. Mangam, 46 N. Y. Super. Ct. 365; Graham v. Pinckney, 7 Robt. 147; Coit v. Lambeer, 2 Code Rep. 79; Skinner v. Noyes, 7 Robt. 228; People es rel. Tull v. Kenny, 2 Hun, 346. See paragraph 96, supra.
58 Thompson v. Erie Ry. Co., 9 Abb. Pr. (N. S.) 233. The only question arising upon the application for the order is whether the circumstances are such as to require a shorter notice than usual. Grossman v. Supreme Lodge, 22 N. Y. St. Rep. 522, 16 Civ. Pro. Rep. 215.
59 N. Y. & Harlem Ry. Co. v. Mayor, 1 Hilt. (N. Y.) 562. “An order to show cause is equivalent to a notice of motion. It merely shortens the notice prescribed by law (Code Pro., $ 402).” Per Rapallo, J., in Court of Appeals, Parmenter v. Roth, 9 Abb. Pr. (N. S.) 386, 393.
60 N. Y. Gen. Rule No. 21; Smith v. Seattle, etc., Ry. Co., 19 N. Y. Supp. 742; Stern v. Knapp, 52 N. Y. Super. Ct. 14; Steuben County Bank v. Alberger, 75 N. Y. 179, 183; Sutherland v. Bradner, 34 Hun, 519. graph 131 post, and cases cited.
As to the papers required to be served on enumerated motions, see also N. Y. Gen. Rule No. 40; Gallt v. Finch, 24 How. Pr. 193.
In Smith v. Seattle, etc., Ry. Co., 47 N. Y. St. Rep. 283, 19 N. Y. Supp. 742, the court held that if the moving party has failed to serve copies of all papers, and timely objection on that ground made, the motion must be denied, but with leave to renew, or the hearing may be postponed and the party permitted to serve the papers on terms. Cited approvingly in Northrup v. Village of Sidney, 97 App. Div. 271, 90 N. Y. Supp. 23. Compare In re Arbitration, 52 Law Times (N. S.) 101.
61 A motion against one who is party to the suit may be heard on a notice that it will be founded upon copies of papers already served upon him. Deutermann v. Pollock, 36 N. Y. App. Div. 522, 55 N. Y. Supp. 829; Badger