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FORM No. 80. Affidavit impeaching credibility of an affiant, or of an alleged material wit.
ness on motion for a new trial, etc. 10
[Title and venue as in other cases.]
A. B., being duly sworn, says:
I. That he resides at [giving street, number, city or town, and county, etc.), and that he is a merchant (or other avocation), having his place of business at [designating his business address in full].
II. That deponent has been well acquainted with C. D., of [designating his residence], for the past ten years [or other period), during all of which time the deponent has lived within a short distance [specifying as near as may be] of his residence [or, place of business], in the same neighborhood, and that there has never been any controversy or matter of difference between him and deponent.
III. That deponent is not related to, nor in any manner connected with, the parties or attorneys to this action, and has no interest whatever therein, either directly or indirectly.
IV. That deponent knows [the character and] the general reputation of the said C. D. in the community where he lives, and that his general reputation for truth and veracity is notoriously bad, and that deponent would not believe him under oath (and deponent can name several well known citizens who, long before this action arose, told the deponent that they regarded the said C. D. as totally unworthy of credit even under oath]. [Or, That the deponent as prosecuting attorney — or otheruise — knows of his own knowledge that the said C. D. was tried and convicted of the crime of perjury at — specifying the court, time, and place and was sentenced — specifying the sentence, if known, and annering and referring to certified or sworn, copy of the record of conriction.] (Jurat.]
[Signature.] FORM No. 81. Order allowing an omission from previous affidavit to be supplied to meet an
objection. 11 (Title of court and cause.]
On reading and filing the annexed affidavit of A. B., attorney for defendant [or, plaintiff], verified the day of 19, whereby it appears that the omission to disclose in the affidavit of said A. B., on which the order to show cause herein,
10 See paragraph 135 (above). 11 Sce paragraph 163 (above).
dated on the day of 19, was heretofore granted by Mr. Justice J. K. and made returnable before this court, on the day of
19 , whether any previous application had been made therefor, was inadvertent and excusable, and that, in fact, no previous application had been made: Now, on motion of said A. B., attorney for defendant, Ordered that the said defect may he and hereby is supplied by the filing of the affidavit first above mentioned, which said affidavit is received and read upon this motion for such purpose only, and [here may proceed with rest of order thereon]. (Date.]
[Signature of judge.] FORM No. 82.
Motion for rehearing. 12 [As in Form No. 47 for notice of motion, to the object of motion, and then insert, for example, as follows:] That the decision of the motion heard and determined herein at a Special Term of this court [in the First Department add, held by Justice J. K.,13] on [specifying time and place and description of motion], may be reopened, and the said motion reargued upon the same papers, on the ground that a question decisive of the case and duly submitted by counsel was overlooked [specifying the question -- or, that the decision of the motion is in conflict with an express statute — specifying it -- or, with a controlling decision to which attention was not called by counsel or, that such decision was based upon an obvious misapprehension of the facts stated in the affidavits of A. B.— specifying in what the misapprehension consisted], or for such other or further relief, etc.
FORM No. 83.
Motion for leave to renew.14
[As in other forms, inserting] for leave to renew the motion heretofore made for [describing it, for instance, a discovery and inspection of certain books and papers in the annexed papers described], on the ground that such motion was denied upon the ground that (stating it, and disclosing that the denial was based
12 See paragraphs 168-171 (above).
13 A reference to the justice who presided may be useful as identifying to whom this motion should be referred by the justice holding the
Special Term before which the motion comes. See paragraph 170, 811pra.
14 See paragraphs 172-180, supra.
on some irregularity, or insufficiency, as: the said motion was made upon an affidavit and not upon a petition as required by statute.]
FORM No. 84. Notice of motion for leave to renew, and of renewed motion, if allowed.16
[As in last preceding Form, adding] and that at the same time an order will be asked (giving the plaintiff a discovery — etc., etc., proceeding as in Form No. 47.]
FORM No. 85.
Leave to renew application for leave.17 ORDERED, that the motion to renew the said motion, based upon the same papers, be and the same is hereby denied, but without prejudice to the plaintiff moving again on the same and additional papers, for leave to renew said motion.
15 A party has a right to renew his motion upon after-discovered facts, without first obtaining leave. See paragraph 174, supra.
16 See paragraph 177 (above).
17 See paragraph 173 (above), as to when leave to renew on same facts should be reserved.
1. What is notice in practice.
terest. 9. Date. 10. Premature notice.
11. Combining several notices.
(86) Notice; common form.
1. What is notice in practice.] — The word “notice," as used in practice, has either of three meanings: 1. Written 18 communication proceeding from one person and addressed to and regularly served upon another. 2. An oral communication proceeding from one person and heard by the other. 3. Actual knowl. edge, or circumstances fairly equivalent thereto. 19
The first of these meanings is the usual one; and wherever a statute, rule of court, or stipulation, requires notice without qualification, this kind of written notice is implied.20
To satisfy such a requirement it is not enough that personal knowledge, however distinct, should be brought home to the person
18 U. S. v. Foote, 25 Fed. Cas. 1140. Printing or engraving is equivalent. Pelton r, Ottawa Supervisors, 52 Mich. 517, 18 N. W. Rep. 245, 17 Repr. 657 (under statute requiring “notice in writing” to be posted). So is typewriting. Hunt r. Dexter, etc., Co., 100 App. Div. 119, 91 N. Y. Supp. 279.
19 Knowledge is tantamount to notice, unless written notice is required. Jones 1. Van Zandt, 13 Fed. Cas. 1047.
Erving v. Mayor, 131 N. Y. 133; Foley r. Mayor, 1 App. Div. 586, 37 N. Y. Supp. 465. Where a statute requires the notice to be filed, it must be in writing. Foley 1. Mayor, supra; Norton v. City of New York, 16 Misc. 303, 38 N. Y. Supp. 90: State 1. Town of Elba Supervisors, 34 Wisc. 169.
Notice by telephone is insufficient to comply with a requirement of a written notice. Re Shier's Est., 35 So. Car. 417, 14 S. E. 931.
20 Gilbert ”. Columbia Turnpike Co., 3 Johns. Cas. 107, 108; Lane 1. Cary, 19 Barb. 537; People 1. Tallman, 36 Barb. 222: Bissell 1. N. Y. Cent. R. R. Co., 67 Barb. 385. But it is competent for the Legislature to sanction constructive notice in proceedings in the nature of proceedings in rem. St. Paul, etc., Ry. Co, v. City of Minneapolis, 35 Minn. 141, 27 N. W. Rep. 500, 502. Notice in a judicial proceeding may be given (if timely) orally in open court, and entered in the minutes. Killip v. Empire Mill, etc., Co., 2 Nev. 46.
10 be charged. He is entitled to a document that he can file and produce as evidence to bind the person giving it. 21
Nor is it enough that a written notice should have proceeded from a third person; it is usually essential to a notice that it should ostensibly proceed from the court or its officer, or from the person on whose part it is to be given.2 If the statute or rule of court be silent on the character of notice required, it must be given personally to the one for whom it is intended.24
Nor is it sufficient to deliver it to the person for whom it is intended if it be not addressed to him, unless the circumstances are such as to entitle him nevertheless to act upon it and hold the writer bound to him upon it.
On the other hand, in the case of a notice given in the ordinary course of a pending action, as between parties of whom the court has acquired jurisdiction, it is not necessary that the contents of even the
itself should be shown to have come to the knowledge of the person addressed (save in so far as personal service is required in exceptional instances), but it is enough if it was duly put in the way of coming to his knowledge, either by personal delivery, by leaving at his office, or by mailing, according to the requirements of practice elesewhere stated.25
The second meaning - an oral communication — is the one appropriate to a class of proceedings in court, or before a judge or referee, such as notice to produce papers, motions on the trial to amend, etc., where formal written notice is not required. The limits of this exception are easily defined by the reason on which it is founded, viz., that the nature of the proceeding is such that
21 Thus service of another paper, such as a report, is not notice, in this sense, of an order recited in it. Matter of N. Y. C. R. R. Co., 60 N. Y. 112. Nor is it enough that a written notice, duly authenticated, was read to the addressed. Hart v. Gray, 3 Sumn. 339, holding appointment of guardian, founded on such notice, void. S. P., People v. McHatton, 2 Scamm. (Ill.) 566 order to return process); Williams v. Brummell, 4 Ark. 129; and Fitts v. Whitney, 32 Vt. 589 (notices to take deposition).
22 Pearson v. Lovejoy, 53 Barb. 407. Where the personal notice of a judgment required by the Code in order. to limit the time to appeal, was derived from a third person — Held, that it should have been given by the one who had obtained the judgment, and the judgment of the lower court dismissing the appeal for not having been taken in time was accordingly reversed.
A notice not shown to proceed from any one therein specified is ineffectual. Rogers r. Hoskins, 14 Ga. 166. See, also, Williams v. Bergin, 108 Cal. 166. 23 See Seger v. Farmers' L. & T. Co., 103 App. Div. 39, 92 N. Y. Supp. 629.
24 Beakes v. Da Cunha, 126 N. Y. 297; Ellis v. Carpenter, 89 Iowa, 521, 56 N. W. Rep. 678; Williams v. Flint, etc., Ry. Co., 116 Mich. 392; Steinhardt 0. Bingham, 182 N. Y. 326.
25 See article on SERVICE, Art. XXI of this chapter.