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Form No. 46. Notice of motion to take affidavit off the files for scandal and impertinence.61
[1 ay state object of motion thus:] That the affidavit of [or, if not genuine, the paper purporting to be an affidavit made by] A. B. (plaintiff, or, defendant] filed on the day of 19, may be taken off the files of this court [as being scandalous and impertinent]; and that [the plaintiff, or, defendant A. B., or, M. N., the attorney of A. B.] on whose behalf [or, by whom] said affidavit was filed, may be ordered to pay to
the costs of this motion, and for such other and further relief as may be just.
61 The motion may be made by a person not a party to the action. Wehle v. Lowey, 2 Misc. 345, 21 N. Y. Supp. 1027.
See forms of orders striking out affidavits as scandalous and directing removal from files under ORDERS, Forms 169 and 170.
FOLIOING. 1. Mode,
2. Effect of omitting. 1. Mode.]-All papers for service or filing ought, for convenience of reference, and if containing more than two folios, to have the folios numbered. This is done by checking or underscoring every hundredth word or thereabouts,63 and marking the number of hundreds consecutively in margin.
All copies, either for a party or the court, must be marked and numbered to correspond with the original and with each other." The habitual disregard of this rule, in printing papers on appeal, and the usage of substituting a new folioing for the appeal book throughout, thus superseding the folio marks in the original pleadings, etc., has led to several decisions that a denial in one pleading of allegations identified only by the folios in another is not sufficient.65 The safer practice, therefore, is not to use the folioing as the means of reference in one part of the record to any other part, without at least additional means of identification of the passage intended, such as by mentioning the number of the paragraph or the first and last words of the passage.
2. Effect of omitting.]—A paper served on a party or attorney without folioing, if it be more than two folios in length, may, within twenty-four hours, be returned for the defect with notice of the particular objection.66 Such a defect in a paper hastily prepared and served at the last moment, has not unfrequently resulted in a judgment by default. But the defective paper cannot be disregarded until it has been duly returned. If not so returned with such statement, the objection is waived.67 But this waiver does not apply to papers required to be filed or delivered to the court.
62 N. Y. Gen. Rule No. 19; Minn. Dist. Ct. Rules No. 8.
63 In practice, the number is roughly estimated without actual counting. In strict counting each figure counts as a word. N. Y. Statutory Constr. Law (L. 1892, chap. 677), $ 11; N. Y. Code Civ. Pro., $ 3343, subd. 24. While it is not inappropriate to designate some particular word in the line, as indicating the commencement of a new folio, this is never done in printed cases, and is becoming obsolete where the papers are typewritten.
64 N. Y. Gen. Rule No. 19. 65 Baylis v. Stimson, 110 N. Y. 621; Varnum v. Hart, 47 Hun (N. Y.), 18.
66 N. Y. Gen. Rule No. 19. The notice must be specific. It is not enough to refer to the Rule, unless the paper violates every requirement of the Rule.
68 N. Y. Gen. Rule No. 19. Failure to folio a judgment entered by direction of the court is a mere irregularity. Baptist Society v. Tabernacle Church, 9 App. Div. 527.
INDORSEMENT. 1. What is title of cause.
3. Indorsing one of several papers. 2. — name and address of attorney.
1. What is title of cause.]—“ Indorsement” strictly imports a writing on the back. A statute requirement that a certificate be indorsed on the instrument it authenticates, is satisfied by annexing the latter firmly to the former. But the rule of court requiring all papers, either for a party or the court, to be indorsed with the title of the cause,69 contemplates literal indorsement for the convenience of identifying the paper at once without opening it.
The title, for this purpose, need not contain the names of all of numerous parties, but may be shortened so far as may be done without impairing convenience and accuracy in identifying the cause.70
2. — name and address of attorney.]— Papers served or filed must be indorsed or subscribed with the name of the attorney or attorneys from whom they came, or, if proceeding from a party appearing in person, with his name, and in either case with the office or place of business." Where several papers are connected, as for instance a copy of a judgment, or order, and a notice of entry, one indorsement of the address satisfies the rule.72
This rule, being for the benefit of the attorney or party receiv ing the paper, omission to comply with it is waived if he receive the paper and does not either promptly return it with notice o the specific objection, or, if return is impracticable for want o address, move to set it aside.13
In the absence of the attorney's address the paper may be ri turned to the party.74 In case of notice to limit the time to a
69 N. Y. Gen. Rule No. 19.
70 See directions as to captions of papers, p. 37 of this volume, where t principle is stated.
01 N. Y. Gen. Rule No. 2. Copies, as well as original, must be so indors Forward v. French, 52 How, Pr. (N. Y.) 88.
72 Falker 1. N. Y. West Shore, etc., R. R. Co., 100 N. Y. 86; People ex Walkill Valley R. R. Co. v. Ketor, 101 N. Y. 610.
73 Evans r. Backer, 101 N. Y. 289. See SERVICE.
74 Taylor v. Mayor, etc., of N. Y, 11 Abb. Pr. (N. Y.) 255; or if a mun pal corporation, to their official counsel. Ib. It is sufficient if the add be given; although not in terms designated as the attorneys' address. D meter v. Havens, 5 Dem. Surr. (N. Y.) 53.
peal, strict practice is required; a notice without the address is ineffectual, 15 or so concealed that it can be overlooked.76
3. Indorsing one of several papers. ]—Where several papers are attached together an indorsement upon the back of the outer one serves for all," unless there is something in the nature of the case to make such an indorsement misleading.
75 Kelly 0. Sheehan, 76 N. Y. 325; Langdon v. Evans, 29 Hun (N. Y.) 652; Forstmann v. Shulting, 107 N. Y. 644.
78 For example, written upon the cover in such a way as to be concealed when the paper is folded. Weeks v. Coe, 36 App. Div. 339, 55 N. Y. Supp. 263.
77 See notes on File-marks, p. 58, of this volume, and on Undertakings, Article XXV, post. Falker v. N. Y., West Shore, etc., R. R. Co., 100 N. Y. 86; People ex rel. v. Keator, 101 id. 610; German Am. Bank o. Champlin, 11 Civ. Pro. R. (N. Y.) 452.
III. WHERE, OR
MOVE, 28. Judge or court, and county. 29. Effect of statute expressly di
recting to whom to apply. 30. Er parte motions may be made
before a judge. 31. Motions on notice, to be made
at special term rather than
before a judge. 32. Exceptional rule in first dis
trict. 33. Exceptional rule as to moving
to vacate,-- judge's order. 34. court order. 35. court orders, at terms
held by different judges. 36. - vacating racatur. 37. Indirectly getting rid of
MOTIONS [Here are presented the rules common to motions generally, reserving for their specific places those peculiar to particular classes of motions, such as for security for costs, for injunction, for reference, and the like. Orders are separately treated at p. 206.]
I. GENERAL PRINCIPLES. 1. What is a motion. 2. Enumerated and non-enumer
ated motions. 3. Practical difference between
them. 4. What are "enumerated.” 5. Scope of this article.
II. RULES AFFECTING POLICY
MOVING. 6. Object of motion. 7. Persons not parties may move. 8. What persons not parties may
be moved against. 9. Effect of motion by or against
one not a party. 10. In what cases to move rather
than appeal. 11.
- statutory “final” decision. 12. In what cases to move rather
than bring new action. 13. In what cases to move rather
than plead. - Want of juris.
diction. 14. want of authority to sue. 15. objections to pleadings. 16. When motion not proper to de
termine an issue. 17. Motions against void proceed
ingg. 18. At what stage motions may be
made.- before service of pro
parte order. 38. Vacating or modifying orders
made by default.
-made by consent. 40. Entry before vacating. 41. Motion to amend or resettle. 42. Motion on further facts. 43. What motions to be made at
special term rather than ap
pellate division. 44. Annellate divisions held by dif
ferent judges. 45. Proper county, and judge.
special provisions for er parte
orders. 46. - general provisions for er
parte orders. 47. in supreme court actions. 48. in county court actions. 49. - qualification as to all actions 50. - in actions in New York city
court. 51. Extent of this power of judge
out of county, or of county
judge. 52. Unauthorized county judge's
19. - after judgment.