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him on the moving party; 62 nor does it apply to papers which are on file in the cause, unless the person moved against is a stranger to the cause, in which case the fact that they have been filed does not dispense with the necessity of serving copies.*
A paper already served, and referred to in the notice as having been served or filed, and as one of those on which the motion is made, may be produced on the hearing in support of the motion without further proof of its genuineness, and is prima facie sufficient until its genuineness is denied.64
The rules applicable to defects in the papers served for the purpose of a motion have already been stated.65
113. Serring further papers.]— If notice of motion has been served before expiration of the time for due service, the moving party may at any time before that time has fully expired, serve copies of further papers, 66 with a notice that the papers of which they are copies will be relied on in support of the motion already noticed; and may even give notice that specified relief in addition to that mentioned in the first notice will be asked.
In other words, an amendment by enlarging the motion may be made by a supplementary notice, if served within time for an original notice; but an amendment by substantially changing the motion should be made by an independent motion, preceded or accompanied, if necessary, by countermanding the first motion and paying costs.
r. Gilroy, 21 Mise. 466, 47 N. Y. Supp. 669; Newbury r. Newbury, 6 How. Pr. 152, 10 N. Y. Leg. Obs. 52; Van Benthuysen r. Stevens, 14 How. Pr. 70. An affidavit need not be re-verified to entitle it to be used a second time. Mojarrietta r. Saenz, 80 X. Y. 547.
62 Van Benthuysen 1. Stevens (abore), (dictum).
63 On a motion against one not a party to the suit, the papers to be used must be served with the notice. Marley r. Green, 11 Paige, 240.
As to imperfections in copies served, see paragraph 3, p. 44, of this volume. 64 Ripley r. Burgess, 2 Hill, 360; Manker r. Epstein, 13 Civ. Pro. Rep. 293. The rules are not the same as on proving a document on a trial of an issue. See Kellogg r. Kellogg, 6 Barb, 116, 130.
65 Pp. 44, 45, of this volume; and to the same effect see Bank of Havana r. Neore. 5 Hun, 624.
66 In Wilcox r. Howland, 6 Cow. 576, the court said: “ Copies of all supplemental affidavits must be served the same length of time before the day
of the principal affidavits;" and holding that a supplemental affidavit served but two days before the motion day could not be received, even though the affidavit of the service thereof stated an excuse for not making an earlier service, for the “excuse would have warranted a notice of the motion for a subsequent day in term, but not a short notice."
114. Mode and time of service.]— The rules respecting service of motion papers are for the most part the same as those relating to notices in the cause, and other papers, and are stated in treating of the subject of SERVICE.
It is only necessary here to say that the rule allowing ordinary papers to be served by mail, provided double time is allowed, does not apply to orders to show cause used as a short notice of motion. The usual clause declaring that service a specified period before the return day shall be sufficient, means personal or actual service.67
V. BRINGING ON THE MOTION, AND THE HEARING. 115. Countermanding notice of motion.] — If a party desires to countermand or withdraw his notice of motion, he has a right to do so on tendering motion costs; but an order of court or consent of adverse party is necessary in order to effect the withdrawal.678 If he countermands without tendering costs, it is proper for the other party to attend and take an order in his absence granting costs upon not appearing, and if he appears it is in the discretion of the court to grant costs irrespective of the merits of the motion.68
If a moving party has embraced two distinct matters in his notice of motion, he may countermand the notice as to either, without paying costs, leaving the motion to proceed as if it had originally contemplated only the remaining object. 6°
116. Counter-motion.]-A party against whom a motion is inade who desires affirmative relief against the moving party, and finds it impracticable to give notice of motion or to obtain an order
67 Marcele v. Sultzman, 6 N. Y. St. Rep. 48, 66 How. Pr. 205 (where such an order directed to be served within two days was held improperly served by mail, even though mailed over four days before the return day, and received two days before that time). tia McCaffrey r. Butler, 87 App. Div. 535, 84 N. Y. Supp. 776.
* Walkinshaw 1. Perzel, 7 Robt. 606, 32 How. Pr. 310; Bates v. Jaines, 1 Duer, 668.
In Lisher r. Parmelee, 1 Wend. 22, the court held that a party countermanding his notice because the object of his motion had been effected, should not be charged with costs.
In Hoover 0. Rochester Printing Co., 2 App. Div. 11, 37 N. Y. Supp. 419, plaintiff had made a motion without stating the grounds therefor in his notice, but which motion was submitted to the court; while decision thereon was pending, plaintiff made a second motion for same purpose, stating that the first motion was withdrawn; held, that the Special Term erroneously granted the second motion without an effectual withdrawal of the first.
Walkinshaw r. Perzel, 7 Robt. 606.
to show cause, returnable on the same day, should either make a counter-motion, and may then, upon the hearing of whichever comes on first, ask to have both heard together; or he may serve a notice, if he can do so in time, that if his adversary's motion be granted he will, in opposing the motion, ask that specified affirmative relief should be granted to him."
If, however, the relief asked in such counter-motion is not • founded wholly on the moving papers of his adversary, it will be error to grant it without giving the moving party adequate opportunity to meet and answer the papers which are relied on in support of it."
117. Adjournment of hearing.] – If the day fixed by notice, or order to show cause, for the hearing of a motion is adjourned by stipulation, care should be used to provide in the stipulation for a proper day, or for bringing on the motion on short notice, or otherwise, as may be convenient, for an extension out of term does not entitle the moving party to take a default on the next motion day without further notice. A motion may be adjourned by consent, and the Special Term may not force the hearing of the motion against the desire of both sides that the argument go over to some other day."
118. Consent as to place of hearing.]— The attorneys (or in open court the counsel "4) may by consent waive an objection that the motion in the Supreme Court was noticed for a wrong county; or fix on any county as the place in which it shall be heard, irre spective of the place for which it was or ought to have been no
70 Clark v. Clark, 11 Abb. N. C. 333. No cross motion is necessary to enable the court to allow amendment of trifling mistakes. Jones v. Williams, 4 Hill (N. Y.) 34. Upon a motion to set aside a judgment for irregularity in taxing costs without notice, the court may direct the judgment to be amended. McLean r. Hoyt, 56 How. Pr. 351.
71 Garcie r', Sheldon, 3 Barb. 232.
For the rule in this respect applicable to a motion to vacate an injunction upon giving security, made on the return of an order to show cause why it should not be continued, see Metropolitan Elev. Ry. Co. v. Manhattan Elev. Ry. Co., 11 Daly, 367 (where it was held that such a counter application made after argument, but before decision, might be deemed as made “ upon the hearing ” of the motion).
72 Rogers 6. Toole, 11 Paige, 212. 73 Barrett, J., in Lilianthal r'. Levy, 4 App. Div. 90, 92, 38 N. Y. Supp. 936. 74 See paragraph 89, p. 119, and STIPULATIONS.
ticed, subject, of course, to the discretion of the court to decline to hear the motion because not brought on in a county appropriate to the place of trial.
119. Effort to remove motion.] --After a Special Term motion has been noticed, though for a proper place, the court have power to require the moving party to show cause, at another proper place, why the motion should not be heard at the latter place; but this is questionable practice, and if the motion has been initiated by order to show cause, it is irregular to take a counter-order to show cause changing the place of hearing; and a default taken at the place to which the adversary seeks to remove the motion, npon the return of his adverse order to show cause, should be racated. 76
120. Transfer by judge.]—Where notice of a motion is given, or an order to show cause is returnable, before a judge, out of court, who, at the time fixed for the motion, is or will be absent or unable, for any other cause, to hear it, the motion may be transferred by his order made before or at that time, or by the written stipulation of the attorneys for the parties, to another judge before whom it might have been originally made.77
121. Adjournment of court to chambers.]— It is not uncommon to adjourn a Special Term to the chambers of the judge holding it; and it is held that ex parte motions before the court can be heard, of course, at such adjourned term; but a motion which cannot be entertained except by the court on notice, cannot be so heard unless by consent of all the parties.78
122. Notes of issue.]— By special rule in the first judicial district for motions noticed for Special Term, Part I, notes of issue for the motion calendar must be filed with the clerk two days before the day on which a motion is noticed to be heard. The clerk is directed to require the exhibition to him of an order to show cause returnable in less than two days before accepting a note of issue within less than two days of the motion day. For the Appellate Division, notes of issue minst be filed eight days before the commencement of the term. 80
75 Rice r'. Ehele, 65 Barb. 185 (holding that such a waiver does not impair the right to appeal from an order made; rev'd on another ground in 55 N. Y. 518). 78 Thompson r. Erie Ry. Co., 9 Abb. Pr. (N. S.) 233. T7 N. Y. Code Civ. Pro., & 771.
& Code Civ. Pro., 8 768; Matter of Wadley, 29 Hun, 12 (reversing an order granting a motion, on the ground that the order to show cause had been made returnable at such adjourned term at chambers). See also People ex rel. Fulton 1. Oswego Superv., 50 Hun, 105; Matter of Manning, 71 id. 236, 24 N. Y. Supp. 1045.
79 Rule II of Special Term.
123. Preference. ]- If a party desires his appeal to the Appellate Division heard as a preferred case, he must, in his note of issue, make claim therefor, stating grounds. If there are grounds not appearing in the papers for claiming a preference upon the calendar, special application should be made for the preference. 81
124. Striking from the calendar.]— To strike a cause from the calendar and take judgment in his favor for failure to serve papers for an enumerated motion at Special Term, four days' notice of inotion must be given.82 A motion will lie to the Appellate Di. vision, on three days' notice, to dismiss the appeal or for judgment in favor of the respondent, for a failure to serve and file the re quisite appeal papers. 83
125. Default of party moved against.]— If a party to whom due notice of motion has been given does not appear to oppose, the moving party is entitled (except on motions for judgment in matrimonial causes) to take at a time and place covered by his notice, the order or judgment moved for (but no more than moved forS4) on proof of due service of the notice or order to show cause, and other papers required to be served, unless the court other
80 N. Y. Gen. Rule No. 39. In the first department the note of issue for a motion need not be filed with the clerk before Thursday noon preceding the Friday for which it has been noticed. App. Div. Rule No. II, First Department.
si See rules of Appellate Divisions. But in the first department, the only requirement seems to be that the note of issue shall claim the preference where a case is by law entitled to it. App. Div. Kule V, First Department.
82 N. Y. Gen. Rule No. 40. See Rogers v. Pearsall, 21 App. Div. 389, 47 N. Y. Supp. 551.
83 N. Y. Gen. Rule No. 41. Four days' notice required in the first depart. ment (Special Rules Nos. IV and V). *
84 Smith r. Fleischman, 17 App. Div. 532, 45 V. Y. Supp. 553; Ohly v. Ohly, 11 Wkly. Dig. 129; Matter of Radam Microbe Killer Co., 114 App. Div. 199.