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7. Certiorari in civil cases and in criminal contempt (if not otherwise specially regulated by statute); when noticed for bearing by either party after return is complete. 95

8. Exceptions, 96 directed to be heard at the Appellate Divi

sion.97

9. Issues of law98 (including those joined on an alternative writ of mandamus granted by the Appellate Division). 99

10. Motions arising on special verdicts.

11. Motions for new trial of an issue of fact,” other than those made upon the minutes, or upon an allegation of irregularity or surprise.

12. Motions to overrule exceptions and for final judgment upon report of a referee.

13. Submissions of controversies on an agreed case. Other motions are non-enumerated.5

95 N. Y. Gen. Rules, No. 38, and Code Civ. Pro. $ 2138 (therein referred to), and 88 2147, 2148. The first-mentioned section requires the hearing to be at the appellate division of the department embracing the county where the writ is returnable.

96 N. Y. Gen. Rules, No. 38.

97 Other exceptions on the trial, unless made the foundation of a motion for new trial so as to appeal from the order thereon, are only brought up by appeal from the judgment; N. Y. Code Civ. Pro. & 996. Whether an appeal from an order as to new trial is an enumerated motion (unless the order was made in an inferior court), depends on the ground of the motion. See subd. 11 (above).

98 N. Y. Gen. Rules, No. 38. Issues of law are those arising on demurrer. N. Y. Code Civ. Pro. & 964.

99 N. Y. Gen. Rules, No. 38, and Code Civ. Pro. $ 2085, therein referred tu. But an appeal from a final order in a mandamus proceeding, if no case and exceptions are included, is classed as a nonenumerated motion. People ex rel. v. Board of Education, 113 App. Div. 315.

1N. Y. Gen. Rules, No. 38. For the distinction between special verdict and answers to special questions, see Abb. Civil Jury Brief, 2d ed. 406.

2 For these, save the exceptions stated, require a "case." N. Y. Code Civ. Pro. $$ 998, 999.

This includes motions for new trial, made upon a case, or exceptions. Ellsworth v. Gooding, 8 How. Pr. 1; Van Shaick v. Winne, Id. 5; N. Y. Gen. Rules, No. 38.

Whether it includes motions on the ground merely of newly discovered evidence may perhaps raise a difference of opinion. That a case is necessary upon such a motion, see Bantleon r'. Meier, 81 Hun, 162, 30 N. Y. Supp. 706; Harris v. Gregg, 4 App. Div, 615, 38 N. Y. Supp. 844.

3 Rogers v. Pearsall, 21 App. Div. 389, 47 N. Y. Supp. 551. 4 N. Y. Gen. Rules, No. 38, and Code Civ. Pro. $ 1279, therein referred to.

5 N. Y. Gen. Rules, No. 38; McKenzie v. Wilson, 2 Cai, 385, Col. & C. Cas. 428 (motions to bring on trial by record); People v. Northern R. R. Co. 42 N. Y. 217 (motion for judgment on the pleadings on the ground that an answer raises no issue).

Smith v. Cheetham, 2 Cai. 381, Col. & C. Cas. 425 (motion to set aside a verdict for irregular conduct of jury).

The rule that a non-enumerated motion must be heard as such, does not override the general principle that a motion which, though not enumerated in the list, is necessarily involved in enabling the court which tried a cause, or heard an enumerated motion, to carry its decision into the record, should be made before that court, as a part of the proceedings there.

5. Scope of this article.]— In all that follows in this article we are concerned only with motions in the more limited sense of an application to the court or judge for an order incidental to the progress of a cause, which is its ordinary signification. The mode of making the various enumerated motions, such as appeals, demurrers, etc., will be treated in their appropriate connection.

II. RULES AFFECTING POLICY AS TO MOVING. 6. Object of motion.]— The object of a motion must be to obtain an actual direction of the court or judge. A motion made simply to obtain the opinion of the court — for instance, as to whether proceedings for arrest will be valid — will not be entertained,

7. Persons not parties may move.]-A person injuriously affected by an unlawful proceeding in an action, or having an interest in the subject of the action, though not made a party, may move for such protection to his rights or interests as justice requires. One having no interest is not entitled to move, 10 and it is error to grant his motion.11

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6 Thus, where a reference is directed in foreclosure at a special term for trial of causes, it is not error for the court sitting at “special term and chambers" for nonenumerated business, to refuse to entertain a motion to confirm the report of the referee. Empire B., etc., Assoc. v. Stevens, 8 Hun, 515. But the court has power, and it is not error to entertain such a motion at such a special term and chambers.” Boegler v. Eppley, 40 Hun, 523.

7 McMichael v. Kilmer, 20 Hun, 176; Morss v. Hasbrouck, 15 Wkly. Dig. 308.

8 Gould v. Mortimer, 16 Abb. Pr. 448, 26 How. Pr. 167; Lawlor v. Mayer, etc. 5 Abb. Pr. 325; Green v. McMurtry, 20 Kans. 192; Callender v. Painesville, etc., R. Co, 11 Ohio St. 516.

9 Lapaugh v. Wilson, 43 Hun, 619, 6 N. Y. St. Rep. 624. 10 Thomson r. Tracy, 60 N. Y. 31; Mayer v. Flammer, 81 N. Y. Supp. 1062.

11 O'Mahoney v. Belmont, 62 N. Y. 133 (where the opinion shows that an order granted in a former proceeding on motion of one not a party had been reversed on appeal).

8. What persons not parties may be moved against.]—A person, though not a party to the action, who has voluntarily submitted himself to the authority of the court therein, as for instance by purchasing property which is the subject of the action, from a party thereto, pending the action, or at a judicial sale made by direction of the court therein, may be proceeded against respecting the subject, by motion, without being made a party to the record. In the absence of any different direction by the court or judge, such person must have personal notice, unless and until be appears by attorney.

9. Effect of motion by or against one not a party.]—Where the court have power according to the practice, to make an order on the application of a person not a party to the cause, or against a person not a party to the cause, he is bound by it as if he were a party, and they have power to enforce it in the same manner as if he were. 12

10. In what cases to move rather than appeal.]— In a general way the test between cases where a motion should be made rather than an appeal taken, requires an application of the principle that appeal is the remedy to correct a judicial error,13 whether consisting in a wrong conclusion of fact, drawn from the evidence or affidavits,14 or in a wrong conclusion of law applied to the facts, or in the assumption of a power which the court or judge15 could not lawfully exercise: and that the appellate tribunal considers no more than was actually before the court or judge below, or may be judicially noticed.16 Hence, in the case of such a judicial error, the party aggrieved is not required to apply to the court or judge committing it for relief, but may appeal directly; though he may,

12 This principle must be deemed inherent in judicial power. See, fo example, Jay v. De Groot, 2 Hun (N. Y.), 205; Hill v. Hill, 58 Ill. 240; Smit v. Equit. Mortg. Co. 98 Ga. 240.

13 De Lavallette v. Wendt, 75 N. Y. 579, where a judgment against a .executor was erroneously entered against him personally, and the remed was held to be a motion to correct, and not by appeal. Per Curiam : “ Th court sits to correct the errors of the court below, and not ordinarily tho of ministerial officers, or of the parties, never properly brought to the atte tion of those courts.”

14 Wilson ('. Barney, 5 Hun, 257, 261; Flaherty v. Flaherty, 5 Monthly Bul. 74. (Where an order is made on defective proofs the remedy is appeal, not a motion to vacate.)

15 Or referee appointed to hear and determine all the issues in the acti Albany Brass & Iron Co. 1. Hoffman, 30 App. Div. 76, 51 N. Y. Supp. 779

16 The principle is carefully stated in Stannard v. Hubbard, 123 N. Y. 5

if he choose, upon an interlocutory application and before a final judgment has been rendered,"7 ask a rehearing before appealing, and will commonly do so if he attributes the error to want of consideration, or wishes on appeal to rely on a ground he omitted to bring to the attention of the court or judge; and in case of powers wrongly assumed he is never confined to an appeal, but may always apply to vacate or modify. An error in an order made by a judge out of court may always be corrected by motion to the court. 18

On the other hand, for an error consisting in a discrepancy between the judicial intent of the court, judge, or referee, and the form or contents of the record of the proceeding; 19 or in de

17 After final judgment, the trial court has no revisory or appellate juris. diction to amend errors in substance affecting the judgment. Stannard v. Hubbard, 123 N. Y. 520; Morrison v. Met. El. Ry. Co. 60 App. Div. 180, 70 N. Y. Supp. 65; Meldon v. Devlin, 39 App. Div. 581, 57 N. Y. Supp. 670.

18 Westside Bank v. Pugsley, 47 N. Y. 368, 12 Abb. Pr. N. S. 28. Unless otherwise specially provided, as in the case of provisional remedies. N. Y. Code Civ. Pro. 8 772. The provisions contained in $ 1304, which allow a judge to vacate an order made by him out of court, if the party who obtained it does not enter it or file the papers, after an order requiring him to do so, so as to enaole the party aggrieved to appeal, ought not to be regarded as requiring such a motion to enter and file, and an appeal; but are to be con. strued as permissive even if in part superfluous; and the court is not deprived of its power of correcting, directly, on motion, an error made by a judge out of court.

19 For instance the following cases hold that any irregularity consisting in the entry of an unauthorized judgment not conforming to the judicial intent or decision, must be corrected on motion (within a year from entry of judg. ment. Corn Ex. Bank v. Blye, 119 N. Y. 414), and not by appeal; and properly so, for from the nature of the case it is often impossible to raise the point by exception.

Ingersoll 1. Bostwick, 22 N. Y. 425; Young v. Atwood, 5 Hun, 234; Cochran 1. Gottwald, 41 N. Y. Super. Ct. (J. & S.) 317. (Improper form of judgment in replevin.)

Simmons v. Craig, 137 N. Y. 550; Howland v. Howland, 20 Hun, 472; Walbridge t. James, 4 Hun, 793; Losee v. Ellis, 13 Hun, 655; Oliver v. French, 82 Hun, 426, 31 N. Y. Supp. 740; Beetz v. Fuller, 92 Hun, 457, 36 N. Y. Supp. 950; Foley v. Foley, 15 App. Div. 276, 44 N. Y. Supp. 588; Levy v. La Fountain, 81 App. Div. 636, 80 N. Y. Supp. 468. (Entry of a judgment not authorized by the court's decision or referee's report.

Cameron v. N. Y. El. R. Co. 38 App. Div. 16, 56 N. Y. Supp. 304. (Judg. ment entered on verdict at trial term, when it should have been certified to the special term.)

Hollister v. Simonson, 170 N. Y. 357. (A final judgment entered at special term which fails to conform to an interlocutory judgment directed by the appellate division, may be corrected either by appeal or motion.)

Patten 1. Stitt, 50 N. Y. 591. (Costs improperly inserted in a judgment entered on remittitur, where judgment " without costs ” had been ordered. ) But where the judge erroneously attempted to adjudicate upon the costs as if the action were an equitable one, appeal is necessary. Norton v. Fancher, 92 Hun, 463, 36 N. Y. Supp. 1032.

ciding upun only a partial disclosure of the facts, or under accident or mistake; 20 or consisting in official misconductaor incapacity of ministerial officers of the court; or involving any circumstances which make it desirable to bring into the record matter not already there, a motion is the proper remedy; and the appel

Sabater v. Sabater, 7 App. Div. 70, 39 N. Y. Supp. 958. (Where referee in divorce action did not award costs, an improper provision therefor in the Special Term judgment should be stricken out on motion.)

People v. Pernetti, 95 App. Div. 510, 88 N. Y. Supp. 714 (where a judgment has been entered by consent, or under an agreement which will be construed as a consent, e. 9., the stipulation in a recognizance, no appeal will lie from the judgment; the remedy against unauthorized judgment is by motion to relieve from the consent, or to vacate the order forfeiting the recognizance).

People ex rel. Oswald v. Goff, 52 N. Y. 434. (Provision in a judgment for a restoration of money collected on a tax having been inserted without authority, the proper remedy is by motion to correct the judgment.")

Moran v. Chase, 52 N. Y. 346 (where, on a report in lien proceedings directing simply a sale, a personal judgment was erroneously entered.)

Campbell v. Seaman, 63 N. Y. 568. (“ If plaintiff entered a judgment not authorized by the referee's report, defendant should have moved to set it aside, or to correct it.")

Cagger v. Lansing, 64 N. Y. 417 (where a judgment in ejectment stated the sum received, as damages for withholding, when it should have been for use and occupation).

Cole v. Tyler, 65 N. Y. 73. (Here a judgment erroneously directed a receiver to sell lands, when the decision merely set aside a conveyance thereof by a judgment debtor as fraudulent.)

Reeder v. Sayre, 70 N. Y. 180. (Here judgment was entered for two survivors, without specifying that it was for them as survivors of themselves and the one who was deceased. “ It was an irregularity which should have been taken advantage of by motion.”)

Kraushaar v. Meyer, 72 N. Y. 602. (Where the extra allowance granted by the lower court and inserted in the judgment was slightly in excess of that allowed by Code Pro., 8 309 – held, that this was an inadvertence to be corrected by motion to correct the judgment.")

Beers v. Shannon, 73 N. Y. 292. (Here a judgment failed to show whether it was adjudged to an executor as such or to him personally. Folger, J., said: “ That is not the subject of review here. There is no exception, nor can there well be one. The remedy was patent and easy by motion at special term to amend.")

Leonard v. Columbia Steam Navigation Co. 84 N. Y. 48; Briggs v. Hilton, 99 N. Y. 517; Goodwin v. Schreiber, 86 Hun, 339, 33 N. Y. Supp. 456. (Judgment not conforming with verdict.)

Judson v. Cent. Vt. R. R. Co. 158 N. Y. 597; Health Dept. v. Dassori, 159 id. 245. (The Appellate Division may amend its order of reversal to conform to its decision, even though an appeal therefrom is pending.)

20 Herbert v. Smith, Lans. 493 (holding that an alleged mistake of the judge at Special Term as to an agreement between him and counsel relating to a reference to take proof of certain facts in controversy on a motion, was a matter which " ought to have been corrected by an application for a rehearing of the motion, on affidavits clearly pointing out the mistake or oversight which had occurred.”) Loy 1. Met. El. Ry. Co. 15 App. Div. 1. (Error in court's computation of damage based upon mistake in date of plaintiff acquiring his interest.)

21 Matter of N. Y. Central, etc., R. R. Co. 64 N. Y. 60.

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