37

applied upon motions, so as to preclude a writing, or an affidavit to the contents of a writing, from being deemed qualified by statements in an affidavit of an inconsistent oral agreement or communication, to the same extent as upon a trial at law; but the latter affidavit is not on that account necessarily inadmissible.

151. Judge's recollection.]- The judge may act on his own recollection where the matter in controversy is what took place before himself on a former motion in the cause, if the minutes or other record do not conclude the question.38

39

152. Technical irregularities.]—To set aside proceedings solely for technical irregularity, a clear case must be shown,3 and the moving party should be held to strict regularity in his motion.40

A motion founded solely on a technical objection should be denied, if the defect be amendable and is removed before the hearing; but if the motion is one that ought otherwise to have been sustained, the denial should be without costs.*1

153. Prejudging merits of action.— Unconstitutionality of statute.]— A motion should not be granted as an indirect method of determining or prejudging an issue on the pleadings, whether of fact or law, if the issue be a proper one for trial; "2 except when necessary for the purpose of a provisional remedy, or to determine a question of law as to the jurisdiction of the court.

42

Questions of law or of fact fundamental to the merits of the action should not be determined on motion as a mode of precluding or dispensing with formal trial, nor even for the purpose of deny

37 Peet . Cowenhoven, 14 Abb. Pr. 56.

38 See, for instance, Elliott v. Plattor, 43 Ohio St. 198, 1 West. Rep. 25, 27; Grossman v. Supreme Lodge, 5 N. Y. Supp. 122. Where, however, it appears that the judge was under a misapprehension, the Appellate Division may disregard his statement. See Farmers' Nat. Bank v. Underwood, 12 App. Div. 269, 42 N. Y. Supp. 500.

39 Potter v. Tuttle, 2 Wend. 254.

40 Hawley v. Donnelly, 8 Paige, 415; Sawyer v. Schoonmaker, 8 How. Pr. 198 (where a motion to set aside a pleading because not folioed was denied with costs because the two affidavits on which the motion was made were not folioed).

41 N. Y., Lake Erie, etc., Ry. Co. v. Carhart, 36 Hun, 288 (holding it error to impose costs on the moving party upon denying his motion).

See paragraph 114, supra, as to countermanding notice, when object of motion has been attained.

42 Paragraph 16 (above), and STAY OF PROCEEDINGS.

The

ing an application incidental to the course of the action. court or judge should usually avoid passing on the merits when the action is brought up only on motion.

And in those cases where a motion necessarily involves the merits (as is often the case on motion for a preliminary injunction, or motion for judgment on the pleadings), the court at Special Term should not determine the unconstitutionality of a statute.*

44

154. Requiring new action.] -Where material questions of fact are presented on seriously conflicting evidence, and the relief sought by the motion could be appropriately granted in a new action brought for the purpose, in which those questions would be determined, not on ex parte affidavits, but by common law evidence taken on a trial, the court has a discretionary power to deny the motion and leave the party to his remedy by a fresh action, even though the necessary parties are already before the court; and this should be done where the motion is beyond the ordinary course of interlocutory proceedings, and granting it would determine the substantial rights of the parties without trial. This question usually arises on motions to set aside stipulations, discharges,46 releases, etc., that apparently bar the progress of an action. But the principle is equally applicable to motions after judgment to set aside the judgment itself, or proceedings had under it.49

45

47

48

155. Another action pending.]—The pendency of another action in which the relief sought by the motion can be administered, does not as matter of law entitle the party moved against to a denial of the motion, unless the other action is shown to be in another court having exclusive jurisdiction.50 But the court should

43 McGuin v. Cace, 9 Abb. Pr. 160; and see paragraph 16, supra.

44 Brien v. Clay, 1 E. D. Smith, 649; People v. Tweed, 63 N. Y. 202, 50 How. Pr. 26; Havemeyer v. Ingersoll, 12 Abb. Pr. (N. S.) 301.

45 Hill v. Hermans, 59 N. Y. 396; Mut. Life Ins. Co. v. O'Donnell, 146 N. Y. 275.

46 Phillips . Wicks, 38 N. Y. Super. Ct. 74; Union Surety Co. v. Sire, 34 Misc. 221, 68 N. Y. Supp. 942.

47 Romain v. Garth, 5 Supm. Ct. (T. & C.) 361.

48 Marvin v. Marvin, 1 Abb. N. C. 372.

40 Hackley v. Draper, 60 N. Y. 88, aff'g 2 Hun, 523, 4 Supm. Ct. (T. & C.) 614 (receiver's sale). Union Surety Co. v. Sire, supra.

50 See Market Nat. Bank . Pacific Nat. Bank, 102 N. Y. 464, 5 East. Rep. 551; Oneida Bank v. Bonney, 101 N. Y. 173; s. c., sub nom. Oneida Bank . Herrenden, 4 N. E. Rep. 332.

in the exercise of a sound discretion deny a motion which the pendency of such an action renders unnecessary.

51

156. Former order not res adjudicata.]— The decision of a former contested motion, though unqualified, is not res adjudicata, in the sense in which a judgment is,52 at least unless it was made on a reference, or after the trial of issues, where full proofs were taken, and the order thereon was not discretionary; or, where the order decisively and conclusively fixes the rights of the parties by the determination of an issue which ripens, or may ripen into a judgment.54

53

But as a rule of practice, to prevent confusion, the unqualified decision of a contested motion heard on affidavits is sufficient reason for denying a new motion in the same action, and between the same parties, on the same or substantially the same facts, and involving any of the same relief.55 It does not, however, bar a new motion on new facts,56 nor does it bar an action.57

The decision of a motion in one action may be regarded as ground for denying a similar motion on the same facts in an

51 The fact that the same matter is pending between the parties in chancery, is a reason for refusing to entertain a motion, particularly where a feigned issue will be necessary. McLaren v. McLaren, 6 Wend. 537.

52 Riggs v. Pursell, 74 N. Y. 370, 378; Dutton v. Smith, 10 App. Div. 566, 42 N. Y. Supp. 81.

53 Dwight v. St. John, 25 N. Y. 203 (reference and oral proof). In Dutton . Smith, 10 App. Div. 566, 42 N. Y. Supp. 81, the court considered that the decision in Dwight v. St. John, supra, had been much limited, and would not apply to any motion, the decision of which rested in the court's discretion. See also Aldridge v. Walker, 73 Hun, 281, 26 N. Y. Supp. 296; Matter of Randell, 87 App. Div. 245, 84 N. Y. Supp. 294; Everett v. Everett, 180 N. Y.

452.

54 See Webb v. Buckalew, 82 N. Y. 555; Matter of Gall, 40 App. Div. 114, 57 N. Y. Supp. 835; Williams v. Barkley, 165 N. Y. 48.

55 Floersheim v. Musical Courier Co., 103 App. Div. 386, 93 N. Y. Supp. 41; Matter of Treadwell, 85 App. Div. 570, 83 N. Y. Supp. 241, where the court say: Orders "are so far final and conclusive that when they are sought to be disturbed it must be upon new facts, or matters outside of the scope of the issues presented or litigated, or which might have been, and it should appear that in some form the rights of a particular party has been prejudiced."

An order striking out a paragraph in an answer, not appealed from, is conclusive on a motion to strike out a similar paragraph in an amended answer. Peaslee v. Peaslee, 2 Misc. 573, 22 N. Y. Supp. 527; s. P., Oppenheim v. Lewis, 20 App. Div. 322, 46 N. Y. Supp. 765.

See also paragraph 172 (below) as to Renewals.

56 See paragraph 174 (below).

57 Dutton . Smith, 10 App. Div. 566, 42 N. Y. Supp. 81; Blank v. Blank, 107 N. Y. 91; Monroe v. Monroe, 50 N. Y. St. Rep. 237, 21 N. Y. Supp. 655; Dickenson v. Gilliland, 1 Cow. 481, 495.

other action between the same parties, if the repetition may be deemed vexatious."

The denial of an irregular motion, because not made before the proper court or judge, is no bar to a subsequent regular motion for the same relief; 59 but it is the safer practice to have the order of denial qualified by saying that it is without prejudice to a new motion.

157. Irregularity not specified.]-It is error to grant a motion for irregularity not specified; 60 but the denial of such a notion may be without prejudice to renewal; 61 or, if the omission has not misled, the court may allow the notice or order to show cause to be amended, and require the party moved against to show cause, even instanter.62

158. Unnecessary motions.]-A motion which is wholly unrecessary, as for instance for leave to do an act which the party has full right to do without leave, may be denied; 63 but where this is done the ground of denial should appear in the order.

A motion which was not necessary as matter of strict legal right, as for instance to compel the reception of a pleading which has been duly served and returned, should not be denied if the attorney by omitting to make it would have enabled his adversary to claim even unsuccessfully a default or other advantage which would have required an application to the court to get rid of.“

A motion to vacate a proceeding on the records of the court should not be denied merely on the ground that the proceeding

58 Schlemmer v. Myerstein, 19 How. Pr. 412.

59 Morrison v. Morrison, 16 Hun, 507; Spelman v. Terry, 74 N. Y. 448; Carter v. Beckwith, 128 N. Y. 312; People ex rel. Warschauer v. Dalton, 29 Misc. 154, 60 N. Y. Supp. 876, aff'd 52 App. Div. 626.

60 See paragraph 96, supra; Barker v. Cooke, 16 Abb. Pr. 83, 40 Barb. 254, 25 How. Pr. 190; Sniffen v. Peck, 6 Civ. Pro. Rep. (Browne) 188.

Even though there be no answering affidavits. Montrait v. Hutchins, 49 How. Pr. 105.

But it is not error to grant such a motion if the irregularity was specified in the moving papers (as in an affidavit, though not in the notice), and was met by counter-affidavits, and was discussed at the hearing of the motion. Livermore v. Bainbridge, 14 Abb. Pr. (N. S.) 227.

61 Macomber v. Mayor, etc., of N. Y., 17 Abb. Pr. 35; Livermore v. Bainbridge (above). See paragraph 173 (below).

62 Miller v. Kent, 59 How. Pr. 321.

63 Contra, Benjamin v. Murray, 28 How. Pr. 193.

64 Fredericks v. Taylor, 52 N. Y. 596, 14 Abb. Pr. (N. S.) 77; Pattison v. O'Connor, 23 Hun, 307.

sought to be vacated is void, and the party therefore might disregard it.65

159. Effect of prayer for general relief on contested motions. - Power of court.]— Under the general prayer for "other and further relief," in the notice of motion, the court has power to give such relief, against those appearing and opposing the motion, as the facts disclosed by the moving papers, and fairly substantiated, entitle the moving party to have under all the circumstances of the case,66 subject, however, to the rule that relief on the ground of an irregularity not specified in the notice should not be granted, and that the relief granted should be allied to what is asked for.67

But whether this power shall be exercised, is in the discre tion of the court or judge; a discretion which, when exercised at Special Term, or by a judge out of court, may usually be reviewed at Appellate Division, but which cannot be reviewed in the Court of Appeals, even on the ground of abuse."

68

160. principles governing discretion.]- The chief rules which ought to guide the exercise of this discretion, where the moving papers clearly showed the grounds for relief, and the adverse party appeared and has had full opportunity of opposition, are as follows:

1. If the moving attorney has merely mistaken the form of the remedy, and that which is desired under the general prayer is not substantially more unfavorable to the adverse party than that which he was warned in the notice would be asked, as where he moves to set aside the summons because the complaint departed from it, instead of asking that the complaint be set aside for such departure;

69

See Kamp v. Kamp, 59 N. Y. 212; Matter of Niagara Falls, etc., Co., 121 id. 319; Hughes v. Cuming, 165 id. 91; Erisman v. Pidcock, 62 How. Pr. 327, and see paragraph 17 (above).

66 Van Slyke t. Hyatt, 46 N. Y. 259 (dictum); Matter of Rhinebeck, etc., R. Co., 67 N. Y. 242, aff'g 8 Hun, 34; King v. Barnes, 51 Hun, 550, 4 N. Y. Supp. 247; Martin v. Kanouse, 2 Abb. Pr. 390; Bissell v. N. Y. C.. etc., R. Co., 67 Barb. 385; Schultheis v. McInerny, 27 Abb. N. C. 193, 13 N. Y. Supp. 684; McKesson v. Russian Co., 27 Misc. 96, 57 N. Y. Supp. 579.

67 Matter of Weeks v. Coe, 111 App. Div. 337; Boston Nat. Bank v. Armour, 50 Hun, 176, 3 N. Y. Supp. 22.

68 Van Slyke v. Hyatt, 46 N. Y. 259, and kindred cases, are superseded.

69 Boington v. Lapham, 14 How. Pr. 360.

S. P., where the notice of motion asked that proceedings of a defendant in