[For list of FORMS, see p. 253. The subject of MOTIONS is separately treated at page 66.]

I. NATURE OF AN ORDER.

1. What is an order.]-An order may be defined as a written direction of a court or judge other than a direction contained in a judgment. Save in a few very exceptional instances, it is essential to the existence of an enforceable order that it be in writing, 85 and, if a judge's order, signed by the

85 Under N. Y. Code Civ. Pro., § 767, which describes an order as a direction in writing, a mere oral decision of a court is ordinarily not enforceable by the party until reduced to writing and authenticated. Smith v. Spalding, 26

judge, or, entered.8

if a court order, authenticated by the judge and

An agreement of the parties that the judge's decision need not be reduced to writing does not make an oral decision an order.s

2. Practical requisites.]-A very informal writing may be an effectual order; but the practical value of an order often depends on such formal parts as may protect it from attack or question. For this reason correct practice requires that its contents should not merely be such as to preserve and communicate to the adverse party the direction given, but, coupled therewith, should clearly show, (1) in what cause and by what authority it was made; (2) who applied for it, and on whose behalf; (3) upon what papers; (4) whether upon notice to others or not; (5) if upon notice, to whom, and whether it was opposed, and, if so, by whom and on whose behalf, and on what papers; and (6) on what evidence or admissions additional to the papers, if any, it was made, and (7) the time when the direction was given or was to take effect.

N. Y. Super. Ct. (3 Robt.) 615, 30 How. Pr. 339 (holding that a mere denial could not be construed, on extrinsic evidence, as a denial of an oral motion under general prayer for relief).

The clerk's entry in the court's minutes of an order referring the cause to the referee to hear and determine, is a compliance with the statutory requirement, although no formal order was drawn up or filed. Gerity v. Seeger, etc., Co., 163 N. Y. 119, 57 N. E. Rep. 290.

86 A writing, unsigned, purporting to grant a new trial, found among the papers of a judge after his death, and ordered on file by his successor, held not an order, and that it could not be shown to be such by extrinsic evidence. Wentz v. Lowe (Pa., May 10, 1886), 3 Atl. Rep. 878.

87 At least, entered by the clerk in the minutes. Gerity v. Seeger, etc., Co., 163 N. Y. 119. In Adams v. Nellis, 59 How. Pr. 385, an opinion was sent to counsel before the death of a party, stating the conclusions of the court upon the facts and law, with the reasons and authority therefor, and directing findings and conclusions to be drawn up and signed; held, not to constitute a decision within the meaning of N. Y. Code Civ. Pro., §§ 763, 765, 1010, and 1022, and that the findings and conclusions of law drawn up after such death of a party were void under Code Civ. Pro., § 765. S. P., Coakley v. Mahar, 36 Hun, 157, where the court refused to accept a statement in the record that a motion was made and denied as equivalent to the making and entry of an order thereon. See also Bonner v. McPhail, 31 Barb. 106. That entry is necessary, see cases under paragraph 62 (below).

88 Kiser v. Lovett, 106 Ind. 325, 6 N. E. Rep. 816, where it was held that on grounds of public policy, even though a statute does not expressly require orders to be reduced to writing, the court ought not to enforce a restraining order or injunction, even by action on the undertaking given on obtaining the injunction, unless the order was reduced to writing so that the parties might be definitely informed as to what they were restrained from doing. 89 As, for instance, an allowance of a writ. See p. 19 of this volume.

Other features important to the one party or the other will be considered in connection with these details.

3. Distinction between orders and judgments.]- The importance of the distinction between directions contained in a judgment which are not termed orders, and those which are drawn up or signed and entered as orders, or entered in the minutes as such, results from the facts (1) that the rule of costs for motions and resulting orders is different from that of trials and resulting judgments; (2) that there is a different rule also as to appealability; (3) that a judgment is deemed res judicata, while orders in general are not,91 and (4) that there are different methods of enforcement.

In general, orders are those minor directions incidental to the progress of the litigation, which, having served their purpose, are superseded by judgment; but upon some subjects direc tions which subsist in the form of orders during the action may, upon due consideration, be embodied in the clauses of the judg ment, and thus become part of the final adjudication.

It should be observed that the conflict in the language of the

90 The decision of the judge in settling interrogatories is an order required to be in writing, and when entered is appealable. Uline v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 175.

An order for a new trial is not a final judgment within the meaning of the Code allowing an appeal from a final judgment. Duane v. Northern R. R. Co., 4 How. Pr. 364 (Ct. of App.), dismissing an appeal.

A direction of the court entitled a Special Term order, and stated to have been entered, and in effect adjudging an answer to be frivolous, and the plaintiff entitled to judgment on the pleadings, and directing entry of judgment, reference, etc., is an order, and not a mere allocatur. Elwood v. Roof,

82 N. Y. 428.

In King v. Stafford, 5 How. Pr. 30, it was held that the granting of a motion for judgment upon a demurrer as frivolous was not an order from which an appeal could be taken, for it was "in effect a direction to enter judgment, and would necessarily be included in the judgment."

The nature of the act of the court, not the terms of the notice of motion, determines whether the direction is an order or a judgment. Thus it was held that granting a "motion" for judgment on a demurrer is a judgment. Roberts v. Morrison, 7 How. Pr. 396; s. c., 11 N. Y. Leg. Obs. 61. But it is usual now in such case to take an order that judgment be entered, and enter judgment as a separate paper.

91 For the rule as to orders, and its exceptions, see page 149 of this volume. For the distinction between common orders or orders of course, and special orders or orders granted on actual application to the judge. -a distinction of importance at common law and in equity, but superseded under the codes of procedure which dispense with common orders and require orders only in cases where actual application to the judge is necessary -see Lube's Equity Pleading, 54, 98, and U. S. Supreme Ct. Rules of Practice in Equity, 4 to 6.

decisions as to what constitutes an order, results in part from not appreciating that for these purposes the same test as to what should be deemed an order is not always applicable.

4. Order on the minutes in open court.]- Upon the same principle that stipulations, which in general must be in writing and signed, are equally valid if made orally in open court and entered in the minutes, a direction or ruling of the judge made in open court and entered in the minutes is valid without his sig nature or authentication.92

If it is appealable as an order, it should be also drawn up in writing and entered as a preliminary to an appeal.93

5. Distinction between orders and rulings.]—When such a direction is put upon the minutes at a trial, the question whether it is appealable as an order or to be reviewed by an exception, and a motion for new trial or an appeal from the judgment, depends on different considerations.94

An order entered in the clerk's minutes in open court and by consent does not require the formal approval of a judge. Gerity r. Seeger, etc., Co., 163 N. Y. 119, 57 N. E. Rep. 290; Bell r. Vernooy, 18 Hun, 125 (where an order of reference by consent in open court was entered in the minutes). See, also, Leyde v. Martin, 16 Minn. 38 (where an order of reference by consent was not signed by the judge, and such signing was held unnecessary, as the proceedings of the court are shown by its records, of which the minutes kept by the clerk are a part). A mere endorsement by the judge on the calendar, "Referred to L. K. M.," is not sufficient. Bonner r. McPhail, 31 Barb. 106. 93 To review the denial of a motion for a new trial upon the judge's minutes, there must have been an order of denial made in writing, and entered. is a jurisdictional prerequisite. Maass v. Ellis, 9 N. Y. St. Rep. 512. statement in the appeal book that such a motion was made and denied and exception taken, is not equivalent to an order. Coakley r. Mahar, 36 Hun, 157 (where, affirming the judgment, the court said: "A formal order duly entered is the only competent evidence of such a motion "). See also Ball r. Davis, 1 N. Y. St. Rep. 517 (where the court said: "Without the making and entry of such order, the plaintiff is not at liberty to review the decision upon any question of fact").

This
The

In The Governor t. Bancroft, 16 Ala. 605, it was held, that a motion entered on the docket, with the memorandum of the judge written across it, showing his action thereon, though not spread upon the minutes of the court, was quasi a record, and admissible in evidence to prove the facts which it imports. 94 Not every direction of a court or judge becomes an order by being put in writing when otherwise it would not be. Howard v. Freeman, 6 Robt. 511, where it was held, that the denial of a motion to postpone a trial was not suck a "direction" as to admit of its being separated from other proceedings on the trial and entered as an order for the purpose of an appeal. Robertson, C. J., upon dismissing the appeal, said: "To construe the word 'direction' in its ordinary and literal sense would lead to absurdities. The daily adjournment of a court, and the instruction to a clerk to enter an order or set down a cause on a day calendar, are directions in writing. It can only, so far as any

95

6. Orders by consent without application to court.]- Under code procedure the consent of the parties does not of itself authorize the clerk to enter an order.9 The clerk can record what the court, or a judge thereof, does or directs in the cause, but he otherwise cannot add to the records, except in a case where some statute or rule of court authorizes him to do so. If it is done in open court it is the act of the court. But if the parties procure the clerk to enter an order, their proceedings under it will not necessarily fail because of their waiver of proper sanction.

An order properly made by consent is rarely anything more than an agreement or stipulation, with the added sanction of the court that it be made part of the records of the cause. It cannot be appealed from by a consenting party. The court have the same power to relieve a party from it as from a stipulation, but the sanction which the order adds is an added reason for requiring a clear case to be made in support of an application for such relief.

7.

consent as to form.]-A consent to the form of an order is not, however, a consent to the order, but only a waiver of formal objections. It presupposes that a judicial determination of the substance of the order is made upon evidence, and merely dispenses with notice of or attendance at settlement, leaving the party free to appeal on the merits.

right of appeal is concerned, properly be understood to include mandates on parties or officers or final determinations of rights."

Where, on a motion to dismiss the complaint at the trial, for insufficiency, the court ruled, on plaintiff's application, that he might amend on payment ot costs within a fixed time, otherwise the complaint to be dismissed, held that the entry of an order was not proper. Weichsel v. Spear, 47 N. Y. Super. Ct. 223, aff'd, 90 N. Y. 651. The usual practice, however, seems to be to enter an order, from which plaintiff, asking the favor, is not entitled to appeal. See Driscoll v. Downer, 55 Hun, 534, 9 N. Y. Supp. 129; Morris v. Thomas, 80 App. Div. 47, 80 N. Y. Supp. 503.

35 Except it be in the minutes in open court, or unless some particular statutory provision authorizes this to be done in a special case, as, for example, under N. Y. Code Civ. Pro., § 1011, upon filing in the clerk's office a written stipulation signed by the attorneys for the parties consenting to refer the issues in an action to a referee named in the stipulation, "the clerk must enter an order of course, referring the issue or issues for trial to that person only." See Gerity v. Seeger, etc., Co., 163 N. Y. 119, as to sufficiency of entry in clerk's minutes of an order of reference consented to in open court. The clerk may enter an order as of course discontinuing the action without costs, upon plaintiff's consent and proof that the defendant has not appeared. Hotaling v. Schermerhorn, 28 Misc. 311, 59 N. Y. Supp. 484; aff'd, 48 App. Div. 638.