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18. practice peculiar to borough of Manhattan. ]— Under the statute which, to accommodate the press of business in the county of New York, allows any order that by the general law must be made by the court at special term, to be made by a judge out of court (except orders for new trial on the merits), there has been much difference of opinion and practice as to whether an order made out of court should be entitled as a court order. The nsual practice is to entitle a judge's oriler as if it were simply such, and not as a special term order?7 (but, of course, to insert the clause requiring the filing of the motion papers), and to take the signature of the judge as an ordinary judge's order; although a direction to enter, with his initials added, is equally effective.
But the mistake of entitling a judge's order as if it were a court order does not necessarily affect the validity of the order. 18 Hence throughout this work, forms of orders which, except in the first district, must be made by the court, are characterized by the usual special term caption.
19. What judge.]— The rules of court or of law requiring motions on notice to be made before the judge mentioned in the
17 Lachenmeyer r. Lachenmeyer, 26 Hun, 542, opinion by Davis, P. J.; Boegler v. Epple, 40 Hun, 523, 2 N. Y. St. Rep. 101; S. P., Disbrow v. Folger, 5 Abb. Pr. 53; Ives v. Phelps, 16 Minn. 451.
The reasons for preferring this practice are that it truly represents the actual fact; and that there is nothing in the statute requiing the adoption of the fiction that an order made perhaps at the judge's house, and in vacation, should pretend to have been made at the court house and in term time.
If we analyze the statutory expression we find that in relation to numerous orders the Code provides that the application may be made to “ the court or a judge thereof.". Under such a provision, throughout the State such orders may be made and entitled in either way; and a judge is not required to adopt the fiction of making a court order. In relation to some other classes of orders the Code provides that application must be made “ to the court;" but a special clause ($ 770) adds that in the first district, in all such cases lexcept for new trial on the merits), the application may be made to a judge out of court. As matter of construction, the legal effect of this is the same, for that district, as if the words " or a judge thereof,” were inserted in each provision requiring application to the court; and it no more requires the fiction of a court order than if those words were inserted.
Perhaps, however, the right to punish for contempt as if of a court order is clearer if the order is in form a court order.
18 Boucicault 1. Boucicault, 21 Hun, 431 (motion to vacate arrest in nature of ne creat, on the ground that it was ostensibly a court order, made in fact by a judge out of court, denied). And see cases cited in notes to paragraph 16, supra.
So, it does not vitiate findings really made at Special Term, that the caption indicated they were made at the Special Term for chambers business, if the regular Special Term for trials might lawfully, and could be presumed to have been actually held there. Fisher v. Hepburn, 48 N. Y. 41.
notice, and certain motions to be made before the same judge who heard previous proceedings, are shown to have been complied with, by the order itself, in connection with the notice or other proceedings; and if a transfer of the motion or a change by stipulation or consent has been made, the order or stipulation of transfer should be annexed to the moving papers and referred to as such in the order, or if the transfer was by oral direction or consent, the fact that it was made should be recited in the order, 19 unless this is, as in some cases, unnecessary by reason of the appearance of the party before making the order.
20. Date. ]— The day mentioned in the caption of a court order, or suffixed to a judge's order, should usually be — and must be if either party require it— the day on which the order is actually initialed to be entered, or signed by the judge 20 It is the day of the entry of the court order, however, which determines when it became effective.21 But the right of a party in this respect is subject to the power of the court to give effect to its decision as of any date, from the time of the making of the motion on, and, when making an amendment in its own proceedings or records, even any earlier day.22 Delay of the court
19 See for form of stipulation or order, Forms 70, 71. In the counties of New York and Kings, however, a proceeding commenced before a judge out of court, in an action pending in a court of record, may, by virtue of N. Y. Code Civ. Pro., & 26, be continued before any of the judges of the same court. Thus an attachment having been issued by one judge, any other judge has power to hear an application to tax the sheriff's fees and poundage therein. Woodruff v. Imperial Fire Ins. Co., 90 N. Y. 521, 524. In such case no recital on the point is needed. But this section has no application to a motion heard by the court. Matter of Mayor, etc., of N. Y., 139 V. Y. 140.
20 The chancellor, in Whitney 4. Belden, 4 Paige, 140, refers for this purpose to the time of actual entry, but it appears that he meant the drawing up and authentication of the order, which was in that case the day of entry; and that in case of a delay in entry the rule stated by him would apply to the authentication of the order by the judge rather than to a later day to which entry might be delayed by the practitioner. This is the present English practice, too, which requires that “ every order, if and when drawn up, shall be dated the day of the week, month, and year, on which the same was made unless the court or a judge shall otherwise direct, and shall take effect accordingly."
21 Wilcox 0. Nat. Shoe, etc., Bank, 67 App. Div. 466, 73 N. Y. Supp. 900, Hastings v. Twenty-third Ward Land Co., 46 App. Div, 609, 61 N. Y. Supp. 998; Vilas v. Page, 106 N. Y. 455.
22 When some ruling was made of the prior date, which was not properly, or which was improperly, entered. Guarantee Trust Co. v. Phila., etc., R. R. Co., 160 N. Y. 1.
This power must vield, however, when the superior equities of strangers intervene. See Wilcox r'. Nat. Shoe and Leather Bank, 67 App. Div. 466, 73 N.
while holding the motion under consideration ought not usually to prejudice a party; and hence one method of giving the decision effect as of the time of making the motion, is to date the order as of that time. If desired to give the order effect as of an earlier day, it is done by a clause directing that it be entered and take effect nunc pro tunc as of a specified anterior day.
The careful practitioner generally finds that to have the record represent the actual fact is safer than to rely on a fiction. The appropriate way of so doing where the final determination of a motion is delayed, is to date the order on the very day when it is signed by the judge, to rely on the clerk's underwriting or filemark, as showing the day of actual entry, and, if the order was made later than the day the motion was noticed for, to insert in the body of the order such clauses as will show that either the adverse party appeared, or that the motion came regularly on upon the day when default was taken. Also, if it is desired that the order shall take effect as of an earlier day than that on which it was actually made, to insert a clause directing that it have such effect.
The practice of dating an order back to the day mentioned in the notice of motion dispenses with recitals of adjournments in case of default, and with directions as to taking effect nunc pro tunc; but sometimes has embarrassed the party who adopted it by cutting off his time to proceed under the order. The power of the court to sanction so doing is, however, a useful one, especially where death or other cause of abating or suspending the proceedings has intervened after the motion was submitted and during the delay of the court before actual decision or order made 23
1. Supp. 900; Matter of Gies Lithographic Co., 7 App. Div. 550, 40 N. Y. Supp. 146; Moran v. Sturgis, 154 U. S. 256. The rights of the parties are fixed by the court's decision, i. e., when the judge's memorandum or conclusion is prepared, or endorsed upon the papers, and the papers handed to the clerk. Robinson v. Govers, 138 N. Y. 425, 30 Abb. N. C. 241; Rochester, etc., Co. v. City of Rochester, 176 N. Y. 36, 62, aff'g 84 App. Div. 71, 78, 82 N. Y. Supp. 455.
23 See for instance Carter* v. Beckwith, 82 N. Y. 83, affirming an order directing that the date of a previous order be changed by substituting a date prior to decision and prior to the death of a party who died before decision, but subsequent to the argument. Approved in Matter of Beckwith, 87 X, Y, 503.
False antedating for the purpose of impairing the rights of parties is condemned in Livingston's Petition, 2 Abb. Pr. (N. S.) 1, 34 N. Y. 555, 32 How. Pr. 20.
But when an order is thus antedated, it must not be as of a time when the court or judge could not legally act, as for instance, of a time when the term of court mentioned could not be held.24
An order ought not to be post-dated.25
Mere delay to have an order signed and entered is not alone ground for vacating it.26
What has been said above of the date of decision and all subrequent dates, is subject to the power of the court to give effect to its decision, notwithstanding delay in reaching or perfecting it. Thus an order extending time may be given effect from the time the motion was made, instead of from the time of entry of the order.
24 De Agreda v. Mantel, 1 Abb. Pr. 130.
25 Smith v. Coe, 7 Robt. 477 (dictum that if the time of its date has not arrived it is nugatory).
The young practitioner and the student will do well to notice the significance of the dates involved in a motion and order.
The date appended to a notice of motion is of no account unless there is an undated admission of service, or where it serves to explain an ambiguity or mistake in the clause of the notice designating the day of the motion.
The date of service of notice of motion fixes the right of the moving party to take an order by default; and may be material on the good faith of the adverse party in acts done thereafter and also sometimes on the question of costs.
But neither of these is the date of the motion, for a notice of motion is not in itself a motion, i. e., an application to the court, but only a warning of intention to make application.
The date of the return day of the notice is the only date on which the moving party can take a default, unless either (1) the motion properly goes on the calendar, and then default may be taken on the day it is reached in due course; or (2) an adjournment is had in the presence of or by consent of the adverse party, in which case his default may be taken on the adjourned day, if he does not then appear.
The date of the hearing of the motion, or, if the hearing be continued more than one day, the date of the final submission of the papers which present the facts to the court, is the date according to which the facts are to be determined, subject, of course, to the power of the court to reopen the motion and take evidence of later facts.
The date of the decision, if the motion be not immediately decided, is the date according to which the law is to be applied, so that a statutory change of remedy intervening may affect the decision, subject, however, to the familiar rule as to vested rights, and to the power of the court or judge to prevent a judicial delay from impairing the rights of either party.
The date of the actual granting of the order, is the date at which the order takes effect (unless otherwise expressed) as to those bound to take notice of it without service.
The date of the entry of the order, if it be a court order, fixes the time when it takes effect as to the clerk and the records of the cause (unless otherwise expressed).
21. Relation back.]— The power of the court to antedate its order is only one form of its power to mould its own proceedings as may be just. It may equally freely give to an order which is truly dated on the day it was made, just effect by relation back to the time when the motion was made.27
22. Their importance.]— Carelessly or cunningly drawn recitals, slipped into an order without scrutiny, have often invited an appeal and proved fatal.
The recitals determine what papers may be printed on appeal; and in general the appeal can be heard only on papers referred to and facts stated in the recitals.
The court or judge should refuse to sign an order which is plainly defective or erroneous in recitals, and should require the parties to have it properly settled.
We will first notice the points peculiar to an order taken by consent, or by default, and to an order in favor of the party moved against, and then consider the usual recitals in ordinary cases, taking them up successively in the way. they usually appear in a well-drawn order.
23. Recitals in order granted by consent. ]-If an order is made on consent, either as to the jurisdiction or power of the court or
or as to the subject-matter, the consent should be distinctly recited as having been given in open court, and the character of the consent incorporated,29 or be embodied in a written stipula
The date of service of the order, or of a certified copy, if it be a court order, fixes the time when it takes effect (unless otherwise expressed) as to those not bound to take notice of it.
27 May r. Cooper, 24 Hun, 7. See an improper exercise of the power to provide that an order shall relate back, in Guarantee Trust Co. v. Phila., etc., R. R. Co., 160 N. Y. 1.
28 If an objection to the exercise of jurisdiction contrary to statute can be waived, the waiver should expressly appear by recitals in the order or in a stipulation. (Argall v. Jacobs, 56 How. Pr. 167); Newhall v. Appleton, 46 N. Y, Super. Ct. 6.
23 Whitaker v. Desfosse, 7 Bosw. 678 (holding that an order from which a recital that it was made on consent had been struck out on application of the party alleged to have consented, although it was struck out on default, must be regarded on appeal as having been made against opposition, and could not be sustained, if at all, on the evidence). The court said: “From the statements of counsel on the argument, and from the statements of Mr. Justice