Page images
PDF
EPUB
[graphic]

2. Where the moving attorney has specified in his notice the end, but not the necessary means or intermediate steps, to as where he moves for judgment on the pleadings, but has not mentioned the striking out of an answer, which may be necessary to that result," or moves to add a party, but has not mentioned the necessary amendment of the record. 12 But the omission to ask leave to renew, on renewing a motion, is an exception to this-rule.

3. Where he has specified the essential relief, but not added a legal consequence necessarily incidental thereto.73

tort who had appeared as if adult and proved his infancy on the trial and prevailed, be amended by appointment of guardian ad litem, etc., nunc pro tunc, instead of asking that his appearance and answer be struck out and subsequent proceedings vacated. Boylen v. McAvoy, 29 How. Pr. 278.

So, under notice of motion to quash a writ, and for general relief, the writ may be superseded. Ferguson v. Jones, 12 Wend. 241; Stearns v. Kenyon, 5 llill, 519.

So, under notice of motion to admit the landlord as defendant in ejectment, and for general relief, he may be admitted to defend jointly with the tenant. Jackson v. Stiles, 1 Cow. 134.

So, under a notice of motion to set aside a referee's report as lacking specific findings, and for general relief, the report may be referred back for correction. Van Slyke r. Hyatt, 46 N. Y. 259; Schultheis v. McInerny, 27 Abb. N. C. 193, 13 N. Y. Supp. 684.

Under a motion to vacate and set aside an order, and for general relief, the order may be modified. Ives v. Ives, 80 Hun, 136, 29 N. Y. Supp. 1053.

Under a notice of motion to compel defendant to accept service of the complaint, or for such other relief as the court might grant, an order may be made to open plaintiff's default in service thereof and granting leave to serve the complaint. Smith 0. Gourand, 76 Hun, 343, 27 N. Y. Supp. 717.

So, under notice of motion to strike out part of an answer as sham, and for judgment on account of the frivolousness of the remainder and for general relief, the court (under Code Pro., § 244, corresponding to Code Civ. Pro., 8511, which contains some additions), directed defendant to satisfy to plaintiff the amounts admitted by the answer. Fosdick v. Groff, 22 How. Pr. 158. But this is perhaps an extreme case.

So, under a notice of motion to strike out a pleading, error in mentioning as the section of the Code relied on, the section that relates to making more definite and certain, may be disregarded. Blake v Eldred, 18 How. Pr. 240.

So, where an answer contained two defenses, and plaintiff moved for judgment for frivolousness of the answer; and one defense was held good and the other frivolous — held, that the latter defense might be stricken out under the general prayer. Hecker r. Mitchell, 5 Abb. Pr. 453. (But under more recent practice, the motion would be denied and the plaintiff left to his demurrer to the insufficient defense.)

So, under a notice to set aside a judgment for irregularity in adjusting costs without notice, the court may direct the judgment to be amended. Potter v. Smith, 9 How. Pr. 262; Tracy v. Humphrey, 1 Code Rep. (N. S.) 197; McLean 1. Hoyt, 56 How. Pr. 351.

70 Thus, under a notice of motion to set aside a judgment and let defendant in to defend, it is error to refuse to open the default as well as the judgment merely because the notice did not say default. Beatty v. O'Connor, 106 Ind. 81, 5 N. E. Rep. 881.

71 Kreitz r. Frost, 5 Abb. Pr. (N. S.) 277. 72 Walkenshaw v. Perzel, 7 Robt. 606, 32 How. Pr. 310. 73 Thus, under a notice of motion to set aside taxation oi costs, the court 4. If he has asked more than he is entitled to, the part he is entitled to may be granted.74

5. If the relief granted be qualified by reserving a right to the adverse party, as for instance giving him leave to proceed anew after judgment set aside, co-relative relief may be given to the moving party, as for instance to appear and demand a copy of the complaint.75 The moving party, if he has asked for general relief, ough not to be put to a fresh motion even for distinct relief, which he ought to have if the granting of his specific prayer be qualified.

6. The fact that the notice does not ask for costs, does not make it error to grant them, if the motion is opposed; 76 but they may be refused on this ground.”

On the other hand, a substantially different relief, essentially inore unfavorable to the adverse party, though it might have been mored for on the same facts, should not usually be granted. Thus under a notice of motion to stay execution and for general relief, execution should not be vacated.18

mar set aside the judgment for costs entered upon the taxation. Jones r. Cook, 11 Hun, 230. (It may be inferred from the language of the court in this case that there was a prayer for general relief, though the fact is not stated.)

Headings r. Gavette, 86 App. Div. 592, 83 N. Y. Supp. 1017. (Motion to Tacate judgment and for leave to serve appearance; order granted allowing defendant to serve his appearance, that defendant have twenty days to serve his answer, that the judgment stand as security, but that all proceedings thereunder be stayed until after trial. Held, proper.)

14 Thus on a notice of motion to set aside the proceedings, including summons and complaint, on the ground of a variance between the two, and for general relief, the complaint may be set aside. Ridder v. Whitlock, 12 How. Pr. 208; Zacharias v. French, 10 Misc. 202, 30 N. Y. Supp. 945. Compare White 0. Allen, 3 Oreg. 103.

So, under a notice of motion to set aside a judgment and for general relief, it may be ordered that if plaintiff does not stipulate vaive part of the recovery, and enforce it only for what he is entitled to 'I shall be set aside. Bissell v. N. Y. C. R. R. Co., 67 Barb. 385. 15 Tard 0. Sands, 10 Abb. N. C. 60. 78 Jones 0. Cook, 11 Hun, 230. 77 Common practice. See also paragraph 165 (below). 75 l’nder an order to show cause why security for costs should not be ordered, an order dismissing the complaint is improperly granted. Requard v. Theiss, 19 Misc. 480, 43 N. Y. Supp. 1066. So under a motion for an order correcting a date in an original complaint so as to make it conform to the copy served, and for other relief, it would be improper to grant an order striking out the complaint or setting aside its service. The court say: “Under a general prayer for relief upon a motion, every possible relief should not be granted, but it should be allied to what is asked for, and not entirely distinct therefrom." Boston Nat. Bank v. Armour, 50 Hun, 176, 3 N. Y. Supp. 22. 80 under notice of motion to strike out an answer, and for such further

It is not proper to grant affirmative relief to the party opposing the motion, upon matters appearing in the opposing papers.""

161. Power of court upon decision of contested motions to give appropriate relief.]- In the absence of a prayer for general relief, where the parties have appeared and have been fully heard, the court have power to grant relief extending beyond that specified in the notice, if such additional relief is germane to the subject involved. 80

162. Amplifying order, beyond notice.]—Where no one appears in response to a notice or order to show cause, the proper practice is to confine what is granted by the order within what is specifically asked or clearly implied in the notice or order to show cause.81 If the moving party claims that other details are implied, it is generally enough to leave him to his claim that they will be equally implied in the same terms in the order.

163. Amending irregularity to defeat motion founded on it.]— Unnecessary or dilatory motions founded on irregularity, if technically well founded,82 are commonly met by allowing an amendment to cure the irregularity if it be amendable. 83 Whether the

order," etc.-held, that judgment could not be granted. Darrow v. Miller, 5 How. Pr. 247, 3 Code Rep. 241.

Alexander v. Esten, 1 Cai. 152 (court refused to set aside judgment, because the notice merely asked to set aside execution).

Thus, under a notice of motion to strike out specified parts of a pleading and for general relief, the whole should not be struck out. Mott v. Burnett, 2 E. D. Smith, 50. So held reversing the order in this respect.

Thus, under notice of a motion to vacate an order of arrest and for general relief, to reduce bail would be irregular. Smith v. Spalding, 3 Robt. 615; 30 How. Pr. 339.

In White v. Allen, 3 Oreg. 103, it was held that if the motion contains but a single specification, and includes some matters that ought not to be struck out, the whole motion must be denied.

79 Jones v. Burgess, 109 App. Div. 888; Garcie v. Sheldon, 3 Barb. 232.

80 King v. Barnes, 51 Hun, 550, 4 N. Y. Supp. 247; Headings v. Gavette, 86 App. Div. 592, 83 N. Y. Supp. 1017.

81 Even to the matter of costs. Smith v. Fleischman, 17 App. Div. 532, 45 N. Y. Supp. 553; Rogers v. Toole, 11 Paige, 212; Northrop v. Van Dusen, 5 How. Pr. 134, 3 Code Rep. 140; Matter of Radam Microbe Killer Co., 114 App. Div. 199.

82 Jones v. Williams, 4 Hill, 34; Alvord t. Beach, 5 Abb. Pr. 451; Mapes v. Brown, 14 Abb. N. C. 94; Matter of Suburban R. T. Co., 16 id. 152; Kissam v. Marshall, 10 Abb. Pr. 424; Sherman v. Fream, 8 Abb. Pr. 33; Millbank v. Broadway Bank, 3 Abb. Pr. (N, S.) 223.

83 Jurisdictional defects, and some others which radically alter the proceeding, are not thus curable. For instances see Harris v. Durkee, 50 N. Y. Super. Ct. 202; Werbolowsky v. Greenwich Ins. Co., 14 Abb. N. C. 96. Compare Stark v. Stark, 2 How. Pr. (N. S.) 360.

amendment should be made instanter, and the motion denied without costs, or the motion should be granted either with or without costs on condition that the party moved against does not amend within a fixed time, or with leave to the party moved against to anake an original application for amendment, are usually questions in the discretion of the court; and they commonly turn on whether the irregularity or proposed amendment is such that party objecting to it is fairly entitled to regular notice of a motion involving the propriety of allowing amendment.84

164. Reference.] — The power of the court to order a reference in aid of the determination of a motion, or to take evidence, etc., may be exercised, although not invoked by the prayer for relief on the motion.85 The effect of such an order of reference is to postpone the hearing until the coming in of the referee's report, and the motion may be brought on for a hearing at a Special Term, without being sent to the judge who made the order of reference. 80

The mode of proceeding on such a reference, and upon the referee's report, or to review it, will be considered in connection with REFERENCES AND ISSUES.

165. Costs.]— Costs are not usually granted to the moving party unless asked for in the notice or order to show cause. 87

166. Limit of time for decision of motion as to arrest, attachment, or injunction.]- Under the New York statute it is the duty of the court or judge to whom application is made to obtain, vacate, modify, or set aside any order of arrest, injunction order, or warrant of attachment, to decide the same within twenty days after it is submitted for decision.88

84 Garcie r. Sheldon, 3 Barb. 232.

85 But will only be so exercised in extraordinary cases. See Wamsley v. Horton & Co., 68 Hun, 549, 23 N. Y. Supp. 85; Woodward v. Musgrave, 14 App. Div. 291, 43 N. Y. Supp. 830.

86 Sproull r. Star Co., 45 App. Div. 575, 61 N. Y. Supp. 404.

87 Hoffman r. Lux, 1 Monthly L. Bul. 91; Palmer v. Mulligan, 2 Cai. 380. See also cases under paragraph 162 (above). If costs of the motion are asked for, a denial of the motion should award costs. Gardenier v. Eldred, 4 Misc. 505, 25 N. Y. Supp. 870.

But the court has power to award costs to the moving party, although not specifically requested. Jones 1. Cook, 11 Hun, 230. *88 N. Y. Code Civ. Pro., $ 719. This provision is merely directory, and non-compliance furnishes no ground for vacating the order. It seems that the proper remedy is by mandamus to the judge. Hupfel t". Schoemig, 34 N. Y. Super Ct. 476. Same principle, Matter of Clark, 168 N. Y. 427.

167. Who must watch for decision.]-A party who applies to the court and has a decision in his favor is bound to take no tice of it, and cannot claim that he was entitled to lie by until the other should give him notice of it. Thus if a plaintiff, unsuccessful on the trial, obtains an order for new trial, defendant is not bound to give him notice thereof in order to move to dismiss the action for non-prosecution of the new trial.89 On the other hand, if a defendant, unsuccessful on the trial, obtains an order for a new trial, he must serve a copy of the order, if he would afterward move to dismiss for non-prosecution.90

A party against whom a decision is had, on the application of his adversary, is not bound to take notice of it, but may wait before acting on it till he is served with a copy of the order. 91 This however does not require formal notice of the decision on al preliminary objection, reserved for decision pending adjournment, nor justify contempt of an order of which one has actual notice. 92

Where a party obtains, on his own application, an order in his own favor, with conditions in his adversary's favor, as where 2 motion is granted on payment of costs, or performance of any other act within a limited time, the order is regarded as in his favor, under these rules, and he must take notice of the condition and secure its benefit without relying on service of a notice of the decision from his adversary.93

It has been held that ordering a reference (pending the motion), to report evidence and opinion, takes the case out of this statute. Stafford t. Ambs, 8 Abb. N. C. 237.

89 Jackson . Johnson, 7 Cow. 419; Robb t. Jewell, 6 How. Pr. 276, 277.

{0 Jackson 1. Wilson, 9 Johns. 265; Robb r. Jewell, 6 How, Pr. 276. - 01 Id. Johnson r'. Green, 3 Abb. Pr. (X. S.) 342 (where an inquest was set aside because the order placing the cause on the “short cause " calendar had not been served upon the defendant. Per Van Vorst, J.: “ It is the duty of an attorney obtaining an order in an action, to serve a copy of it on the opposite attorney, in all cases where the rights of the other party may be affected or prejudiced by any proceedings taken under the order. Until the order has been served no active proceedings can be taken under it. An attorney conducting a cause has the right to manage it according to the general rules and practice of the court, without reference to any order which may be obtained interfering with his client, or the ordinary conduct of the cause, until a party obtaining an order against him serves a copy of it, so as to give him an opportunity to prepare to meet the exigencies of the order. This is especially true with regard to orders obtained by default").

92 Baker v. Stephens, 10 Abb. Pr. (N. S.) 1. See paragraph 130 (above). 93 Willink v. Renwick, 22 Wend. 608,

« PreviousContinue »