tion, and the stipulation mentioned in the order as one of the papers on which the order is made; or the consent should be indorsed or underwritten upon the original order drawn up to submit to the judge or court for authentication.

24. in order by default of party moved against.]—If the date of an order taken by default is not the same as the return day fixed by the notice of motion or order to show cause, the right to take default is appropriately shown by reciting the reading and filing of due proof of service of the notice of motion,30 and that the motion came on regularly to be heard on the calendar, or by reciting that by consent of the adverse party it was adjourned to the date of the order, or that it was so adjourned by order of the court or judge.

25. — in order dismissing motion for default of moving party.] -The same principles indicate the proper recitals of notice and the coming on of the motion, in case the moving party fails to

Moncrief, by whom the order was made, who has referred to the minutes, we learn that the order originally made was, so far as it directed a reference, made by consent of counsel for the parties respectively appearing for the motion, and upon his understanding from them that the case was a proper case for a reference, and that all parties were entirely willing that it should be referred. The order was accordingly drawn and entered, containing an explicit recital that the reference was by consent of counsel for the parties, respectively. Had the order remained in that form, it is obvious that it could not have been reviewed on appeal." But after stating the facts as to the subsequent striking out of the recital in the order, the court said: "From the order as thus amended, the present appeal is taken; and we find ourselves constrained to consider its legality as it now appears, viz., as an order made in the face of objection and has made it necessary for us to reverse

*

an order which the judge at Special Term did not intend to make, and would not have made."

In Harvey r. Croydon, etc., Sanitary Authority (Chan. Div., December, 1883; 49 Law Times Rep. (N. S.) 567), it was held that a party's consent to an order may be withdrawn at any time before the order has been completed, provided the consent was not given after a statement of the facts had been made to the court.

In Smith v. Grant, 11 N. Y. Civ. Pro. Rep. 354, 3 St. Rep. 255, the court say that admissions or stipulations, and consents, given on the hearing of motions, if not reduced to writing, should as matter of practice be incorporated in the order to be entered thereon, and thus made part of the record for future guidance in case the propriety of the order is afterwards called in question.

30 If the recital be of due made on due proof of service.

service the presumption is that the order was Dayton v. Johnson, 69 N. Y. 419.

appear, and the party moved against takes an order dismissing the motion with costs.

26. in order in favor of party moved against.]-When the decision of a contested motion is in favor of the party moved against, the recitals are usually introduced by the phrase: a motion having been made by the other party for such and such relief, for instance, for an injunction restraining the defendant [briefly characterize], and duly coming on to be heard, and the party moved against appearing, etc., now, on reading and filing, etc., continuing with recitals as in case of granting a motion.

If the moving party has put his motion on a ground to which the other party wishes to confine him, it is desirable to state the ground in connection with mentioning the object of the motion as above.

If the moving party has asked orally under his prayer for general relief, for relief not specified in his notice, the other party should see that the request is stated in the recitals, so that the denial may cover that as well as the relief expressly asked, and preclude a second application for either without leave.

27. Recitals of moving papers.]—A judge's order, which does not require the filing of papers, may well commence with a mere reference to the papers as "On the annexed affidavit of etc. But if filing of papers is required, the appropriate and concisc method is the usual phrase, "On reading and filing the affidavit of A. B., verified the day of. and so on.

The contents of the moving papers should not be recited,31 although the conclusions of fact which they are relied on as establishing may, and often ought to be stated. (See par. 29.) But the moving papers should be enumerated and identified with sufficient precision as to preclude controversy in case the papers have to be printed on appeal. Each party has a right to have the papers

31 N. Y. Gen. Rule No. 27 provides that "orders granted on petitions, or relating thereto, shall refer to such petitions by the names and descriptions of the petitioners, and the date of the petitions, if the same be dated, without reciting or setting forth the tenor or substance thereof unnecessarily." This was intended to compel the same brevity in orders made on petition, as common law practice required in orders on motions made on affidavits.

used upon the motion thus designated,32 and a right to insist that no others shall be designated.33

It is not enough for the bringing of the affidavits before the appellate court that they are found in the record. The order should show, by including them in the papers recited, that they were brought to the attention of the court or judge below.34

A statement in the recitals of the order that the motion was made on certain specified papers, "and all the papers and proecedings in the action" is objectionable, and a resettlement of the order will be granted.35

32 Davis v. Reflex Camera Co., 99 App. Div. 567, 90 N. Y. Supp. 877; Thousand Island Park v. Gridley, 25 App. Div. 499, 49 N. Y. Supp. 722 (reversing an order imposing a condition upon the granting of such an application). Deutermann v. Pollack, 36 App. Div. 522, 55 N. Y. Supp. 829. In Farmers' Nat. Bank v. Underwood, 12 App. Div. 269, 42 N. Y. Supp. 500, the court say that the objection that the paper is immaterial will not lie in the mouth of the successful party who has himself submitted the paper; nor may such other objections be considered, that it was introduced for a specific purpose, or that its recital would involve its being printed upon appeal at considerable expense.

33 Because the appeal will be heard on all the papers so designated (Brown v. Mayor, etc., of N. Y., 9 Hun, 587, 592), and on no others (England v. Gebhardt, 112 U. S. 502, 505; Donahue . N. Y. C. & H. R. R. R. Co. 15 Mise. 256, 36 N. Y. Supp. 441; Smith v. Smith, 43 N. Y. Super. 140), except so far as the practice allows a defect of documentary proof to be supplied on appeal, in order to support, though not to reverse a decision. Irving Nat. Bank v. Adams, 28 Hun, 108. Consent of the parties that other papers be used on the appeal was disregarded by the court in Thompson v. Taylor, 13 Hun, 201. The Special Term may have power to direct that a paper submitted upon a motion, and filed with, and recited in, the order, need not be printed on an appeal therefrom, on the ground that it was not used or considered. Manli. Ry. Co. v. Taber, 7 Misc. 347, 27 N. Y. Supp. 860, 31 Abb. N. C. 167, and note.

34 Donahue . N. Y. C. & H. R. R. R. Co., 15 Misc. 256, 36 N. Y. Supp. 441; Smith v. Smith, 43 N. Y. Super Ct. 140.

In England . Gebhardt, 112 U. S. 502, 505, the court say: "This record shows an averment in the petition for removal that the parties to the suit were citizens of different states, and a finding of the court that they were not. This implies the finding of a fact upon evidence submitted upon a hearing by the court, but before the questions presented and decided at such a hearing can be re-examined on a writ of error, they must be brought into the record by a bill of exceptions, or an agreed statement of facts, or a special finding in the nature of a special verdict, or in some other way known to the practice of courts of error for the accomplishment of that purpose. (Citing Kearney r. Denn, 15 Wall. 51, 56.) Here, however, that has not been done. It nowhere appears that the affidavits were ever brought to the attention of the court, much less that they constituted the evidence on which the ruling was made. The case is, therefore, in this respect, different from Bronson v. Schulten, 104 U. S. 410, 412, where the order setting aside the judgment referred to and identified in terms the affidavits found in the transcript as the foundation of the order which was made."

35 Southack v. Southack, 61 App. Div. 105, 70 N. Y. Supp. 334; Faxon v. Mason, 87 Hun, 139, 33 N. Y. Supp. 802.

Where such a general reference to the proceedings appears in an order, the same court on appeal, as well as a separate appellate court, may refuse to reverse the case on the evidence, unless it appears that all the proceedings thus referred to are contained in the printed appeal book.36

28. of admissions and statements of counsel.]—Unsworn statements or admissions of counsel in open court are available to support an order made upon them,37 but when they are thus relied on as a part of the evidence on which the order is made, the order should recite them, or that the fact which they substantiate is established by such evidence, in order to secure the right of the party relying on them, if appeal be taken. Or the matters admitted should be embodied in a stipulation, and the stipulation mentioned in the order as one of the papers on which the order is made.

If the recital is merely that the order was made on the papers mentioned and on the "statements of counsel," without saying what facts were stated, the appellate court will not reverse it, as made without sufficient evidence, or contrary to evidence, for it may be presumed that sufficient facts were stated to sustain it.39

29. - of facts found.]—It is not inappropriate to recite very briefly the conclusions of fact established by the papers; and this is desirable and important where the order is made under a statute which is so expressed as to authorize it, if such facts "are proved," or " appear to the satisfaction of the court or judge," or the like. In such cases the words of the statute suggest the best form for the clause of the order. A recital in that form is an adjudication on the point, which an appellate court will hesitate to disturb if the moving papers mentioned afford legitimate evidence, though slight, on which such a conclusion might be found.

A recital of the facts found is important also in orders in the nature of an interlocutory decree,10 or which affect substantial

36 See, for instance, Gooding v. Brown, 35 Hun, 153.

37 Priest t. Varney, 64 Wisc. 500, 25 N. W. Rep. 551.

38 Smith v. Grant, 3 N. Y. St. Rep. 255, 11 Civ. Pro, Rep. 354.

39 Gooding v. Brown, 35 Hun, 153.

40 Thus in Morey v. Grant, 48 Mich. 326, 12 N. W. Rep. 202, the court, in an opinion by Cooley, J., say, on reversing an order for a receiver in a partnership case, that was made at the time for final decree, and which ordered, adjudged, and decreed the appointment of a receiver to take possession, etc.:

rights of the parties and require an adjudication of fact to justify the making of them.

30. of preliminary objection.]- If a motion is defeated upon a preliminary objection, both parties are usually interested to see that the order discloses the fact: the successful party, because he may need that recital in order to sustain the order if appeal is taken; the unsuccessful party, because his right to renew his motion is more clear if the order shows the merits were not considered.

If a preliminary objection is overruled, whether it be one interposed to the motion by the party moved against, or one interposed by the moving party to the reception of an affidavit, or other evidence offered to oppose the motion, the party making the objection is interested to have the objection, its ground, and the ruling on it, appear, in order that it may be available to him on appeal."

IV. APPEARANCES, ETC.

31. Argument, by moving party.]—The fact that an order appears on its face to have been made after actual hearing and due deliberation has sometimes an important influence on its effect. If this appears, the order is sometimes treated as appealable, although if it appeared to have been taken by default and without consideration of the merits, it might not be.

On the other hand, if a mere default, it will be opened more readily than if it appears to have been a considered adjudication of the question, even though there were no opposition. In case of default, application to vacate need not be made exclusively to the judge who granted it; in the latter, there is often good reason for

"This order * assumes to appoint a receiver without any adjudication whatever. Even as an interlocutory order there should have been embraced in it a finding of such facts as would give authority for divesting the possession of the defendant, but when made after the evidence is in, the necessity that the court should find that the necessary facts were made out is still more obvious. To appoint a receiver at that stage of the case, without first adjudging the merits upon which the right or the propriety of the appointment necessarily depended, was very plainly erroneous, and must, we think, have been inadvertent."

41 For applications of these principles see Matter of Nat. Gramophone Co. 82 App. Div. 593, 81 N. Y. Supp. 853; Rogers v. Rogers, 54 App. Div. 195, 66 N. Y. Supp. 512; Mix v. Andes Ins. Co. 74 N. Y. 53; Miller v. Kent, 10 Wkly. Dig. 361; Walts v. Nichols, 32 Hun, 276; Merritt v Thompson, 1 Hilt. 550; Livermore v. Bainbridge, 14 Abb. Pr. (N. S.) 227; Gorman v. South Boston Iron Co. 32 Hun, 71.