174. New motion on new facts.]-A party whose motion has been denied in whole or in part, or granted upon conditions which he has not accepted,22 has a right to move again on additional facts which have occurred since the former motion,23 or which without laches were unknown to him at the time of the former motion and have since been discovered.24 22 Evans v. Van Hall, Clarke, 22. 23 In this class of cases at least, the new motion is not a "renewal," strictly so called. German Ex. Bk. v. Kroder, 14 Misc. 179, 35 N. Y. Supp. 380 (motion to consolidate actions granted after service of amended pleadings though no leave to renew obtained). Malone r. St. Peter, etc., Church, 83 App. Div. 80, 82 N. Y. Supp. 519 (permitting renewal and granting motion, after a previous motion for same relief on different facts had been granted at Special Term, but order reversed and motion denied at the Appellate Division). "When a Erie Ry. Co. r. Ramsey, 57 Barb. 449 (where the court said: second motion is based upon a new state of facts arising since the first decision was made, it is not necessary that leave to make the motion should be obtained. It may be made as a matter of right." So held, reversing an order refusing to entertain a second motion because leave to make it had not been previously obtained). Butts v. Burnett, 6 Abb. Pr. (N. S). 302 (where it is held that a motion should not be denied merely on the ground that a motion of the same nature has already been made and denied, if new facts are shown on the second motion such as would be ground for giving leave to renew). Wentworth v. Wentworth, 51 How. Pr. 289 (granting a second application for an allowance pendente lite where new facts were shown, although no leave to renew had been obtained). Fox v. Fox, 24 How. Pr. 385 (where a second application for an extra allowance was granted after another trial and upon facts materially different from those on the denial of the first application). Bonnell. Henry, 13 How. Pr. 142 (where a motion of a judgment creditor to set aside a judgment by confession having been denied without leave to renew, and subsequently an assignee of the judgment creditor having recovered another judgment, held, that the new judgment gave a right to make a new motion as to it, although not as to the judgment assigned. See also Smith r. Zalinski, 94 N. Y. 519, 524; Noonan v. N. Y. C., etc., R. Co. 68 Hun, 387, 22 N. Y. Supp. 860. Goddard v. Stiles, 1 N. E. Rep. 402; mem. s. c., 99 N. Y. 640 (where the rule that leave is not necessary for a second motion when it is not a renewal, but founded on new and subsequent facts, is applied). "The new 24 Nat. Bk. of Port Jervis v. Hansee, 15 Abb. N. C. 488, 7 Civ. Pro. 350 (denying the renewed motion because additional facts could have been ascertained at the time first motion was made, by use of diligence). Willet v. Fayerweather, 1 Barb. 72 (where the court said: matter which will alone justify the renewal of a motion without leave must be something which has happened, or for the first time come to the knowledge of the party moving, since the time of the former motion." Holding that the renewal must be denied, because the matter was not new, but was known to the moving party at the time of his original motion). Elston r. Schilling, 7 Robt. 74 (holding that the denial of a motion to open a default is not a bar to a new motion founded on the fact for the first time presented that the default was caused by the incapacity of the attorney "rendered incompetent by his habits "). Additional evidence to the same facts relied upon does not constitute additional facts within this rule.25 175. Different relief or grounds.]— The court may in its discretion entertain a fresh motion for the same relief upon entirely different grounds, as for instance an application to the favor of the court, on excuse for delay, after denial of a motion founded on the claim of strict right,26 or to strike out a pleading as sham after denial of a motion for judgment on it as frivolous;27 or a motion for entirely different relief upon the same grounds.28 176. Renewal or appeal.]-A motion for leave to renew, may be made notwithstanding a pending appeal,29 but an actual renewal, since it in effect supersedes the original motion, is a waiver of an appeal.30 177. Mode of obtaining leave to renew.]-A motion for leave should be made before the court or judge before whom the original motion was heard,31 and upon papers substantiating the new facts 25 Ray r. Connor, 3 Edw. Ch. 478 (where denying a motion to open a decree the vice-chancellor said: "Affidavits which merely present additional or cumulative evidence on the points before presented, are not to be considered as showing new grounds for the motion). S. P., Schultze v. Rodewald, 1 Abb. N. C. 365 (where the further evidence was an admission on examination before trial). New facts, which impeach the character of the opposite party, may be sufficient to bring the case within the rule. See Apsley t. Wood, 6 Civ. Pro. 178, 67 How. Pr. 406. 26 Hall v. Emmons, 9 Abb. Pr. (N. S.) 370; rev'g, 8 id. 451. 27 Kreitz r. Frost, 5 Abb. Pr. (N. S.) 277. 28 As, for example, the denial of a motion to set aside declaration, on the ground that it had not been filed when it was served, does not preclude a subsequent motion to open a default, on the ground that the declaration had never been regularly filed. Frost v. Flint, 2 How. Pr. 125. 29 First Nat. Bk. v. Clark, 42 Hun, 90, 3 N. Y. St. Rep. 438; Belmont v. Erie Ry. Co., 52 Barb. 637; Riggs v. Pursell, 74 N. Y. 370; Harris v. Brown, 93 N. Y. 390; s. P., Clumpha v. Whiting, 10 Abb. Pr. 448. See also para graph 21. p. 83, of this volume. 30 Harris t. Brown, 93 N. Y. 390; Peel v. Elliott, 16 How. Pr. 481; Noble v. Prescott, 4 E. D. Smith, 139; Apsley v. Wood, 67 How. Pr. 406; Harrison v. Neher, 9 Hun, 127. See also Benedict, etc., Mfg. Co. v. Thayer, 20 Hun, 547 (where the court said: "The order denying the second motion for leave to amend was proper for the reason that an appeal was then pending from the denial of the first motion. That appeal should be dismissed without costs"). Where, after an order has been made denying a motion, leave to renew the motion upon additional facts is granted, the first order is not appealable; the final order made upon the renewed motion, alone can be appealed from. Robbins r. Ferris, 5 Hun, 286. 31 N. Y. Code Civ. Pro., § 776; Matter of Nat. Trust Co., 31 Hun, 20, 4 Civ. Pro. 203; Williams v. Huber, 5 Misc. 488, 25 N. Y. Supp. 327. relied upon, as well as stating the facts in reference to the previous motion. If granted, a new notice of motion should be given. But a notice of motion for leave to renew and notice of the renewed motion may be combined in one notice32 asking for leave to renew, and if leave be granted, for the relief sought by renewal. In the same way an order to show cause why leave to renew should not be granted may contain also direction to show cause, in case it be granted, why the relief sought should not be granted. Leave to renew is usually granted as a matter of course when the denial of a motion has been based upon a preliminary objec tion which can be obviated, and the merits remain unconsidered. 178. Granting leave discretionary.]—An application for leave to renew, even in a case where leave is necessary, is generally discretionary, and the decision not reviewable in an appellate court.3 179. What question involved.]-On a motion merely for leave to renew, the adverse party is not entitled to discuss the merits. of the motion sought to be renewed any further than that failure to show a prima facie case is ground for refusing leave. But the court may, after granting leave, entertain the motion instanter, if no objection to want of notice is made,35 or such notice be given in the notice of application for leave to renew, or it may order the party to show cause instanter.3 180. Effect of leave.]— Leave to renew, inserted in an order denying a motion, allows a renewal even upon the same facts 32 Andrews v. Cross, 17 Abb. N. C. 92; Fowler v. Huber, 7 Robt. 52 (per Robertson, J.: "It is not uncommon to give notice of an application for sucn leave, and in the same notice to give notice of renewing the motion conditionally in case such leave be granted. Without such leave opening the matter for rediscussion, the former disposition of the motion would be a bar." in this case a former application was held a bar, but the order appealed from was modified by inserting a grant of leave to plaintiff to renew his former motion). S. P., paragraph 170. 33 Lanahan v. Drew, 17 N. Y. Supp. 840, 44 St. Rep. 769; White v. Munroe, 12 Abb. Pr. 357; s. c., 33 Barb. 650; Smith v. Spalding, 3 Robt. 615; Wentworth v. Wentworth, 51 How. Pr. 289. Unless refused for want of power. 34 Crocker v. Crocker, 1 Buff. Super. Ct. (Sheldon), 274 (so held where the notice of motion for leave to renew did not contain any notice of a renewal in case such leave should be granted). 35 Fowler v. Huber, 7 Robt. 52 (dictum). See also People ex rel. Wilbur v. Eddy, 3 Lans. 80, 82. 36 Miller v. Kent, 59 How. Pr. 321. supported, if need be, by further evidence.37 If leave is conditional upon some act of the moving party, the papers upon the Mere renewed motion must show compliance with the condition.38 leave to renew reserved in an order made before the expiration of a time limited by the statute, does not enlarge the time. If an enlargement of time is desired, there should be a special clause.39 FORMS. 47. Notice of motion.- General form. 48. The same, on behalf of party not appearing, except specially. 49. The same, for motion on behalf of one not a party to the action. 50. Supplemental notice of motion, enlarging relief. 51. Notice to bring on hearing after indefinite adjournment. 52. Affidavit for a motion.- General form. 53. Affidavit to procure order to take deposition for use upon a motion. 54. The same; where affidavit is desired to oppose motion. 55. Affidavit to presentation of affidavit and refusal to verify. 56. Affidavit to presentation of affidavit and evasion of request to verify. 57. Order to take deposition for use on a motion. 58. Subpoena to a witness to attend and make deposition for use on a motion. 59. Report of referee having taken deposition. 60. Order to show cause.- General form. 61. Order to show cause, allowing further papers to be served meanwhile. 62. Counter-motion. 63. Countermand of motion. 37 Apsley r. Wood, 67 Hov. Pr. 406. ticed for a proper county may be heard in a county for which it could not have been noticed. 68. The same, when not indorsed upon the motion papers. 69. The same, waiving objection that the motion was notified for a wrong county. 70. Order of a judge transferring a motion, or order to show cause, returnable before himself, to another. 71. Stipulation securing same object as last preceding order. 72. The same, when not indorsed upon the motion papers. 73. Adjournment of contested motion at special term to chambers. 74. Adjournment of motion for further preparation, etc. 75. Note of issue on motion. 76. Note of issue for appellate division motion. 77. Note of issue for appeal heard as a non-enumerated motion. 78. The same, for an enumerated motion. 79. Motion to dismiss appeal, or for judgment, for failure to file and serve papers. 38 Wetmore v. Wetmore. 29 App. Div. 512, 51 N. Y. Supp. 800. 39 Wheeler v. Brady, 2 Hun, 347, 4 Sup. Ct. (T. & C.) 547; N. Y. Code Civ. Pro., § 781. [Title of court and cause.42] 43 Please take notice, that* upon" the annexed affidavits of A. B. and C. D. [it is usual to add, verified on the day of 45 46 19,] copies of which are herewith served upon you [and if the pleadings or other proceedings filed or served are relied on, mention them, as, and upon the pleadings and proceedings in this action], the undersigned" will move this court, at a special term49 [Part 1] thereof, to be held [at chambers] at the County Court House [or, otherwise specify place] in the of o'clock in the 51 on the 19., at 48 day52 of noon, [or, at the opening of the court on said day] or as soon thereafter as counsel can be heard, 43 See paragraphs 25-27, as to notice when necessary, who entitled to, and effect of omitting to give. 44 See paragraph 95. as to stating upon what papers. See also paragraph 60, as to when affidavits are unnecessary, and what may be used as evidence. 45 See paragraph 112. as to when service of copies is necessary and when not. See also paragraph 131, as to moving party being confined, at the hearing, to the papers he has served. 46 If not desired to rely on all the proceedings specify those needed, otherwise it may be necessary to print all on an appeal. See, however, Orders, par. 27 on Recitals. 47 See paragraphs 7 to 9, as to what persons, not parties, may move. or be moved against, and effect of such motion. See, also, paragraph 24, as to special appearance, and paragraph 101, as to the effect of an unqualified signature as a general appearance. 48 See paragraphs 28, 29, 31-39, as to when to move the court or a judge. 49 As to what motions must be made at general and what at special term, see N. Y. Gen, Rule 38, and paragraphs 43 and 58. See, also, paragraph 31, for the rule that motions on notice are to be made at special term rather than before a judge; and see paragraphs 29, 32, and 33, for exceptions to the rule. 50 See paragraphs 93 and 94. 51 See paragraphs 53-57, for proper county in which to move in Supreme Court actions. See, also, paragraph 78, as to stating justification for choice of county to move in. 52 See paragraphs 85-88, and 92, as to requisites as to time within which, for which, etc., to move. 53 Omitting this clause does not vitiate. Anon., 1 Johns. 143. See, also, paragraph 92. |