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in support of his original application. Opposition, whether by denial or by new matter, does not entitle him to bolster up his original allegations by fresh proof.

137. New matter in avoidance. - New matter in avoidance, proceeding from either side, may always be met by denial or avoid

10 but this right is subject to the power of the court to refuse to prolong a proceeding on motion by allowing an indefinite series of affidavits. 11

138. Oral demurrer.]—Although the court have power to deny a motion on the ground that the action itself is not sustainable, the defendant has not a right to insist that such objection be heard and considered on a mere interlocutory motion, except in those cases where the law requires moving papers to show the existence of a cause of action.

139. Objection that party is in contempt, or does not obey order.] — The fact that the moving party is in contempt is a sufficient ground for refusing to hear his motion in the same cause in which he committed the contempt,13 if, or in so far as, the motion invokes the favor of the court,14 or asks an aggressive proceeding

obtains no right to submit. See Ferguson v. Commonwealth Rubber Co., 4 App. Div. 611, 38 N. Y. Supp. 375.

9 See paragraph 130, and notes.

10 Shearman v. Hart, 14 Abb. Pr. 358; Schermerhorn v. Van Voast, 5 How. Pr. 458, 460; Powell . Clark, 5 Abb. Pr. 70 (dictum); Jacobs 0. Miller, 10 Hun, 230 (dictum). See also Hardt r. Liberty Hill Mining Co., 27 Fed. Rep. 789.

If anything contrary to the rule above stated was decided in Shearman o. Hart (above), that decision must be regarded as in so far unsound.

11 The moving party cannot, as matter of right, submit replying affidavits. See Ferguson v. Commonwealth Rubber Co., 4 App. Div. 611, 38 N. Y. Supp. 375.

12 Draper v. Heningsen, 16 How. Pr. 281 (where the court said: “The principle upon which it (such an objection] would be allowed would admit a party to take the same objection upon any interlocutory motion in the cause, such as for a commission, which would not be justifiable).

Banks v. Maher, 2 Bosw. 691 (where, overruling such an objection, the court said: “It cannot be taken as an answer to every motion that the plaintiff may make in the ordinary course of proceeding after the action is at issue on issues of fact. It is no answer to a motion for a commission or to any of the ordinary motions made in the progress of a trial”).

13 See Marshall 1. Marshall, 2 Hun, 238, 257, 4 Sup. Ct. (T. & C.) 449. With the main point ruled in this case compare Van Voorhis v. Brintnall, 86 N. Y. 18.

14 Matter of O'Byrne, 55 Hun, 438, 8 N. Y. Supp. 676; aff’d, 121 N. Y. 675 (motion to vacate as unauthorized a commitment issued for refusal to

16

against his adversary, until he purges himself of the contempt, or has placed himself within the court's jurisdiction. 15

But he is entitled to move to vacate for irregularity or nullity the order or judgment which he is charged in contempt with disobeying; for if he is entitled to have it set aside as of right, he may move notwithstanding the charge of contempt.' And he is entitled to make or to resist any motion so far as necessary to protect his strict legal rights."7

The court may likewise refuse its aid to a party guilty of misconduct in not obeying the orders of the court of which he or his attorney has knowledge. 18

140. Right to open and close.]— The general rule that the moving party is entitled to open and close, is equally applicable 10 a motion brought on by order to show cause, as to one brought on by notice. 19

testify, the moving party having left the State to avoid arrest). Wetmore r. Weimore, 29 App. Div. 507, 44 id. 220, 162 N. Y. 503; Sibley v. Sibley, 66 App. Div. 552, 73 N. Y. Supp. 244; Quigley v. Quigley, 45 Hun, 23 (motion to modify an award of alimony when moving party was in contempt for disobedience thereof).

15 Sibley v. Sibley, supra.

16 Matter of Steinert, 24 Hun, 246; Spratt v. Huntington, 2 Hun, 341, 4 Sup. Ct. (T. & C.) 551.

17 This is the modern rule. See cases cited in previous notes on this subject. Brinkley v. Brinkley, 47 N. Y. 40, 49, holding that a party in contempt, and until he is purged of it, will not be permitted to ask for the favor of the court, nor to take any aggressive proceedings against his adversary; but that it is his right to take measures to protect himself and to make any motion designed to show that the order adjudging him in contempt was erroneous. He may move to discharge the order, though in contempt for not obeying it.” "A party in contempt is not deemed by the courts an outlaw, nor do courts disregard his legal rights pending proceedings to punish bim. The rule seems to be that while in contempt the courts will not grant him any favors, but will see that his legal rights are protected."

See also Kaehler v. Dobberpuhl, 56 Wis. 497; Wilson v. Bates, 3 Mylne & C. 197. There are other authorities, however, that recognize only the right to apply to purge the contempt, or to set aside the violated order for irregularity. See Hazard r. Durant, 11 R. I. 195, 201 (1875); Evans v. Van Hall, Clarke, 17, 22; Wallis v. Talmadge, 10 Paige, 443.

The court may overlook or forgive a technical contempt. Whitman 0. Johnson, 10 Misc. 730, 31 N. Y. Supp. 1009.

18 Dudley v. Press Pub. Co., 58 Hun, 181, 11 N. Y. Supp. 337 (motion to vacate order for plaintiff's examination before trial denied, plaintiff having absented himself to avoid service of the order). Campbell v. Bauland Co., 41 App. Div. 474, 58 N. Y. Supp. 984 (motion to vacate order for plaintiff's physical examination denied, under similar circumstances). S. P., Farmers' Kat. Bank r. Underwood, 90 Hun, 342, 35 N. Y. Supp. 693; Boeck 0. Smith, 85 App. Div. 575, 83 N. Y. Supp. 428.

19 N. Y. & Harlem Ry. Co. r. Mayer, 1 Hilt. (N. Y.) 562.

141. Amending moving papers.]— The court or judge has power, on a contested motion, to amend the notice of motion or order to show cause, provided that if it be amended in any respect which would operate to deprive the party moved against of due notice, either of the relief sought, or the facts alleged as the ground thereof, an adjournment equivalent to notice should be given, or an order to show cause made anew.20

The general rules as to amending have already been stated.21

142. Striking out from papers.]— The court may on applicalion of either party, or of its own motion,22 order scandalous or impertinent matter to be expunged from a paper read on a motion; 23 or may direct the paper containing such matter to be suppressed.24 In either case the court may charge the attorney or party presenting it with costs.25

Such application may be made immediately upon the offer to read the objectionable matter, without previous notice of intention. It is not waived by being delayed until then.26

143 Marking papers used.]— Upon settlement of or appeal from an order, controversy may arise as to whether a particular paper was before the court on the motion. Hence it is a convenient safeguard to have the papers used marked by the judge.27

20 This ought not to be done except in furtherance of justice, and where it may save the time of the court, rather than turn the party over to a fresh motion.

21 Page 20 of this volume. 22 People ex rel. Allen v. Murray, 22 N. Y. Supp. 1051, 23 Civ. Pro. Rep. 53.

23 Armstrong v. Phillips, 60 Hun, 243, 14 N. Y. Supp. 582; Powell v. Kane, 5 Paige, 265; Re Miller (Chan. Div. 1884), 51 Law Times Rep. (N. S.) 853. See also p. 60 of this volume and cases cited. 24 Opdyke v. Marble, 18 Abb. Pr. 375, afl'g id. 266.

233 Id. Generally the attorney, for he ought to see that the papers he uses are not scandalous. McVey v. Cantrell, 8 Hun, 522.

26 Opdyke v. Marble (above), where it was said to be the better practice not to move until an offer to read; but see p. 60 of this volume.

27 In Pieper 1. Centinela Land Co., 56 Cal. 173, it was held that the certificate of a judge of the trial court appearing in the transcript of the record of the cause was a sufficient identification of the papers used on the hearing of a motion. The court said: “ The statute (i. e., $ 951, Code Civ. Pro.) prescribes no mode by which it shall be made to appear to this court on appeal what papers were used on the hearing of such a motion as the one before us. Under such circumstances this court has the power to prescribe by a rule how such papers can be brought before it on appeal. This it can do in order to make effectual the appeal given by law. As it has such right to make a rule in advance, it has a like power to ratify and adopt the mode followed in this case. We shall consider the papers named in the judge's certificate as properly before us." See also Schammel v. Schammel, 70 Cal. 72.

They may be marked by the clerk for this purpose if a statute, rule of court, or settled practice give him authority to certify to the fact. In some jurisdictions this is essential.28 In New York the order recites all papers read on the motion.29

The fact that a paper which has no official sanction from the court, such as an affidavit, was filed, is not alone enough to show that it was used, for the purpose of bringing it before the appellate tribunal.30

144. Filing the papers.] — The filing of motion papers is not necessary except upon entering an order, unless required by special rule or statute; and therefore may be more conveniently considered in connection with ORDERS.31

VI. RULES OF DECISION. 145. Default.]— The court should deny a motion which is not opposed, if a defect in the notice or in the proof of service is apparent.

146. Decision, on what papers.]-A motion is to be decided on the facts as presented at the hearing. The court is not called on to take notice of papers subsequently filed.32

28 Walsh 1. Hutchings, 60 Cal. 228, 2 Barb. Ch. Pr. 606; Borkheim v. N. B., etc., Ins. Co., 38 Cal. 623.

Mr. Hayne expresses the opinion that the judge may do this, afterward, nunc pro tunc, if his recollection serves to identify the paper. Hayne's New Tr. & App., 8 264.

29 See ORDERS, post. Farmers' Nat. Bank v. Underwood, 12 App. Div. 269, 42 N. Y. Supp. 500.

30 Williams r. Southern Pac. Ry. Co. (Cal. 1885), 9 Pac. Rep. 152, 154 (dictum), holding it otherwise of a statement settled and certified by the court, and by the clerk as part of the record).

There are two methods of getting motion papers on the record for the purpose of facilitating appeal, and attention to the distinction is necessary to intelligent application of the reported cases. In some jurisdictions, as in New York, the entry of the order, and the filing of the motion papers referred to in it, serve this purpose; and no exceptions are necessary or proper. In some other jurisdictions the order must be accompanied by or included in a bill of exceptions to raise a question for the appellate court.

31 Par. 65, under ORDERS, Article XVI of this chapter, at page 240.

32 Jacoby r. Mitchell, 19 Neb. 937, 26 N. W. Rep. 255. See Ferguson v. Commonwealth Rubber Co., 4 App. Div. 611, 38 N. Y. Supp. 375.

Where a motion is denied with leave to renew, and before the second hearing a repealing statute is enacted, which alters the law upon which the former motion was based, the later motion is to be governed by the statute in force when it is made, the same as if it were the first motion of its kind; and the leave to renew does not confer a right which is vested, in such a

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147. Burden of proof. ]- The burden of proof lies upon the party holding the affirmative, as to each issue made upon the motion. If the party opposing the motion admits the essential allegations in the affidavits upon which it is founded, but sets up in his opposing affidavits new matter in avoidance, the burden of proof devolves upon him.33

On a contested motion, statements in the moving papers, though inade on information and belief, are sufficient to put the adverse party to a denial by affidavit; and on failure to deny they may be taken to be true.34

148. Tacit admissions.]— When the affidavits omit to state what ought to be alleged in support of a motion, the court may properly presume that it could not be truthfully alleged. 35

149. Hearsay evidence.]—A material allegation sworn to on information and belief may be supported by unsworn communications from a person whose affidavit would be proper evidence did not circumstances of time or distance preclude obtaining it, where the object is a provisional or incidental remedy which does not conclude either party.S

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150. Oral to qualify written.]— The familiar restrictions on the admissibility of oral evidence to qualify a writing, are to be

sense as to escape the effect of the subsequent statute. People 1. Cohocton Stone Road, 25 Hun, 13; cf. 44 Hun, 590.

33 Shearman v. Hart, 14 Abb. Pr. 358 (so held granting the motion for an injunction because of failure of defendant to prove his new matter, it being explicitly contradicted by plaintiff's affidavit made at the hearing on purpose to meet the new matter).

A motion to set aside a proceeding in an action within the cognizance of a court of general jurisdiction for irregularity or defect not apparent on the face of the proceeding, may be denied on the moving papers, unless by attidavit or otherwise they create such a presumption of the existence of the alleged irregularity as will cast upon the other party the burden of proving regularity. Parkov. Park, 80 N. Y. 156, aff'g 18 Hun, 466 (proceedings for contempt).

34 Union Bank r. Mott, 9 Abb. Pr. 106, 17 How. Pr. 353; Commissioners of Excise r'. Purdy, 13 Abb. Pr. 434, 36 Barb. 266, 22 How. Pr. 506.

35 Roosevelt v. Dean, 3 Cai. 105, Col. & C. Cas. 460.

A motion to vacate on the papers upon which the order was made concedes the truth of the statements contained therein. Ross v. Wigg, 34 Hun, 192, 6 Civ. Pro. Rep. 263.

36 Merritt v. Thompson, 3 E. D. Smith, 283 (where a letter from a third person was received as evidence to sustain an injunction). See article on AFFIDAVITS, supra.

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