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26. Who entitled to notice.] — Notice, when necessary, should be given to all parties not in default in respect to appearing (or the attorneys of such as have appeared by attorney) 76 who are affected by the object of the motion, whether adverse parties or codefendants, and whether they were original parties to the record, or have substantially become parties by taking some part in the cause. Thus a notice of a defendant's motion to change place of trial should be served on his co-defendants as well as on the plaintiff; and notice of a motion for leave to come in and prove a debt against a fund, should be served on those who have already proved their claim against it, and whose shares may be reduced by granting the application.
A defendant who has made default in appearance is not entitled to notice of any proceeding within the scope of the original cause, in respect of which the court has acquired its jurisdiction over him. Though a defendant may even inadvertentiy submit to the jurisdiction of the court by an informal appearance, such as making a motion without specially qualifying his appearance, yet, in order to entitle himself to notice of proceedings in the cause he must serve a formal appearance or must plead."
But a defendant who has not appeared is entitled to notice of a proceeding to alter the scope of the cause, for instance to make one of his original co-defendants a plaintiff against him.78 The reason is that while he has tacitly consented to judgment
Substitution of a defendant as plaintiff. McLean v. Tompkins, 18 Abb. Pr. 24. Motion to change place of trial. Mairs v. Remsen, 3 Code Rep. 138.
Leave to prove debt after report filed in creditor's action. Pratt v. Rathbun, 7 Paige, 269.
Motion to disbar attorney. Saxton v. Stowell, 11 Paige, 526.
Motion to stay proceedings pending appeal from order disbarring attorney. Re Dorthy, 150 N. Y. 565.
Motion to com pel return of counsel fee allowed to wife in divorce action requires notice to wife as well as her attorney. Graner v. Graner, 2 Misc. 98, 20 N. Y. Supp. 854.
Motion to strike out name of a defendant, after he has appeared generally. Stephens v. Hall, 25 Abb. N. C. 300, 19 Civ. Pro. 37.
The following motions have been held not to require notice:
Revival or continuance of action against one succeeding to interest of a party, it seems, does not require notice to a co-defendant having no interest to oppose it. Gordon v. Sterling, 13 How. Pr. 405.
Leave to habitual drunkard, to make will. Matter of Patterson, 4 How. Pr. 34.
76 N. Y. Code Civ. Pro., $ 799 : Rice v. Ehele, 55 N. Y. 518.
77 N. Y. Code Civ. Pro., 8 421; Douglas v. Haberstro, 8 Abb. N. C. 230, 58 How. Pr. 276.
78 McLean v. Tompkins, 18 Abb. Pr. 24,
by failure to appear, you cannot change the controversy without notice to him.
27. Effect of omitting to give notice.] — Where the court has jurisdiction of the cause, an order made ex parte is not void because the statute prescribes notice, but it is valid until set aside.79 The irregularity of not giving notice may be deemed waived if no motion to vacate 80 or for inconsistent relief is made.
Contesting a motion on the merits, without asking a distinct ruling on the preliminary objection that due notice was not given, waives the objection.81
An order made ex parte may be vacated ex parte by the same judge; and an order made ex parte when notice ought to have been given, is no obstacle to an adverse motion on notice, on which the ex parte order may be superseded. 82
III. WHERE, OR BEFORE WHOM TO MOVE. 28. Judge, or court, and county.] — Under the organization of the New York Supreme Court, a motion, though made within the proper county, may be irregular because (1) made before a judge instead of before the court; or (2) made before the court instead of before a judge; or (3) because made before the court, to modify or vacate a court order made when the court was held by another judge; or (4) because made before the court at special term instead of at the appellate division, or vice versa.83
79 Pinckney v. Hagerman, 4 Lans. 374; aff''d, 53 N. Y. 31; Fisher v. Lang
Cas. 464; Hennessey v. Sweeney, 57 N. Y. Supp. 901.
80 Hewitt v. Howell, 8 How. Pr. 346, 347. In McLean v. Tompkins, 18 Abb. Pr. 24, the want of notice was held not cured by the fact that the aggrieved party subsequently moved to vacate the order made on the motion, nor by his appealing from the order.
81 Crane v. Stiger, 58 N. Y. 625 (because the appellant had actual notice, and appeared and contested the motion). Grafton v. Union Ferry Co., 13 N. Y. Supp. 878 (defendant's attorney appeared on return day and consented to an adjournment).
82 Thus an ex parte discontinuance as to a party may be superseded by an order granting a motion made on notice allowing the party to come in and defend, but after a regular discontinuance, a revival of the action is irregular if ordered without notice to a defendant who has appeared. Smith v. Green, 14 Hun, 529.
83 The appellate division has jurisdiction to hear and determine, in the first instance, any motion which a special term may entertain, both on notice and ex parte; but such jurisdiction will not be exercised except under extraordinary circumstances. Matter of Barkley, 42 App. Div. 597, 59 N. Y. Supp. 84 As, for instance, in the case of applications under Code Civ. Pro., & 2348 et seq., for sale of infant's realty. Matter of Bookhout, 21 Barb. 348. But such an application need not be made at a stated term of the County Court. Brown v. Snell, 57 N. Y. 286.
In the Supreme Court, for the convenience of the profession, it is allowable (except in actions in the first district, that is, in the Borough of Manhattan), to apply for orders in certain neighboring counties as well as in the county where the action is pending; and to apply for some minor orders to a judge in any part of the State; consequently an order otherwise proper may be irregular because made in the wrong county, or by resort to a judge of another court in a case where only a judge of the court having cognizance of the cause could act.
The conditions of regularity in these several respects now require careful consideration.
29. Effect of statute expressly directing to whom to apply.] — Where the only authority for the making of an order is a statute, and it directs the application to be made to the court, a judge out of court cannot 84 (except in the first district $5) enter. tain the application; and, on the other hand, if it directs the application to be made to a judge,86 the court cannot entertain it.
It will be seen in the succeeding article on ORDERS, that an order purporting to be made as a court order may be sustained in some cases as an order of the judge, if it might properly have been made as such; 87 but an order of a judge cannot be treated as a court order merely because it could have been made by him as a court order. 88
30. Ex parte motions may be made before a judge.] — Applications for orders which can be made without notice may in general
So also of an application for peremptory mandamus, even in the first district. People ex rel. Lower v. Donovan, 135 N. Y. 76.
85 N. Y. Code Civ. Pro., 8 770; Disbrow t, Folger, 5 Abb. Pr. 53.
86 As in case of an order that a party submit to examination before trial, Heishon v. Knickerbocker Life Ins. Co., 77 N. Y. 278 (because the order was made by the court).
So also of orders for service of summons by publication. Schumacker 0. Crossman, 12 Wkly. Dig. 99. The court will overlook the form of an order in an attempt to validate it. See Lowerre v. Owens, 14 App. Div. 215, 43 N. Y. Supp. 467.
87 Lowerre v. Owens, 14 App. Div. 215, 43 N. Y. Supp. 467; Regan o. Traube, 16 Daly, 154; Albrecht v. Canfield, 92 Hun, 240, 36 N. Y. Supp. 940.
88 Yale v. Edgerton, 11 Minn. 271; Terr, of Dakota v. Shearer, 2 Dak. Rep. 332, 8 N. W. Rep. 25; Wood v. Kimball, 9 Abb. Pr. 419, 18 How. Pr. 163; Lyle 0. Smith, 13 How. Pr. 104.
be made to a judge as such irrespective of whether he is holding court or not. 89 An order thus made not as an order of court, is commonly spoken of as made at chambers. The exceptions are
(1.) Those asking an order which a statute or rule requires to be made by the court;90
(2.) Those which have for their object the modifying or vacating an order of court.
31. Motions on notice, to be made at special term rather than before a judge.] - In the courts of the State of New York, contested motions, that is to say, motions on notice, or on orders to show cause, must (except in the first district) be made at special term,91 and cannot be heard at chambers (that is to say, by a judge as such irrespective of whether he is holding court), unless by consent. 82
32. Exceptional rule in first district. ]— In the county of New York (borough of Manhattan), which constitutes the first district, a motion which elsewhere must be made in court (except for a new trial on the merits), may be made to a judge out of court. 33
89 By N. Y. Code Civ. Pro., $ 235, each justice of the Supreme Court must, at all reasonable times when not engaged in holding court, transact such judicial business as may be done out of court. The special rules adopted by the Appellate Division of the First Department require all ex parte applications to be made to the justice holding Special Term, Part 2, and provide that any er parte court order granted by any other justice than the one as. signed to hold Part 2 shall not be entered by the clerk. (Special Term Rule V.)
90 As, for instance, an order of arrest in the nature of ne exeat. Code Civ. Pro.. $ 550. Appointment of guardian ad litem in action for partition. Id., § 1535.
91 N. Y. Gen. Rules, No. 38. The rule also provides as follows: “ Contested motions shall not be noticed or brought to a hearing at any Special Term held at the same time and place with a Trial Term, except in actions upon the calendar for trial at such term, and in which the hearing of the motion is necessary to the disposal of the cause, unless otherwise ordered by the justice holding the court; and except, also, that in counties in which no Special Term distinct from a Trial Term is appointed to be held, motions in actions triable in any such county may be noticed and brought on at the time of holding the trial and Special Term in the county in which such actions are triable." See Matter of Argus, 138 X. Y. 557, as to power of court to hear a motion, although contra to the provisions of this rule as then existing.
92 Matter of Wadley, 29 Hun, 12 (reversing order because made on return of order to show cause returnable at an adjourned Special Term held at chambers, and without consent). An order made on a motion heard at chambers without consent, may be void, as unauthorized. See Armstrong v. Love. land, 99 App. Div. 28, 90 X. Y. Supp. 711; Code Civ. Pro., $ 768.
23 N. Y. Code Civ. Pro.. $ 770; a justice in the first district cannot issue & peremptory writ of mandamus. People er rel. Lower v. Donovan, 135 N. Y.
Under this provision the motion may be made, and the order entitled and served, as an order of the judge. The effect of the provision is not merely that a judge may make a court order, but that a judge's order is sufficient. 94
This statutory permission is of little importance as the court is at present constituted. Since the superior city courts were abolished, the demands upon the Supreme Court in that district have required that at least one judge hold court for the hearing and decision of contested motions only. Another justice is assigned to pass upon all ex parte applications, sitting as a judge out of court, and also to entertain all applications upon consent although requiring a court order. The rules, regulating the practice, as now prescribed by the appellate division of the first department, are elaborate, and being merely local in application are not presented here. 95
33. Exceptional rule as to moving to vacate,“ judge's order.]
it may safely be disregarded, a party desiring to vacate or modify it, should apply in one of the following modes:
1. To the judge who made the obnoxious order, and on notice; 97 provided he be a judge of the court in which the action is pending; if in the Supreme Court, an order made by a county judge (or in the County Court, by a Supreme Court justice) can be vacated by him only on the papers on which it was made.
76. An application for a writ of certiorari, though required by section 2127 to be granted at the Special Term, may be made to a judge at chambers, in the first district, but is the act of the court. People ex rel. Grout v. Stillings, 76 App. Div. 143, 78 N. Y. Supp. 942.
94 Disbrow v. Folger, 5 Abb Pr. 53 (enforcing sale in partition, made after
Lachenmeyer 0. Lachenmeyer, 26 Hun, 542 (refusing to vacate a judge's order in such a case).
Boucicault v. Boucicault, 21 Hun, 431 (holding that an apparent court order could not be impeached by showing that it was made by the judge after the court had adjourned).
85 See special rules for the regulation of the Special Terms in the first judicial district, as included in Hun's Court Rules of 1904. See also notes to paragraph 30, supra. But a Special Term order made at either Part 1 or Part 2 of the Special Term would not be void for want of jurisdiction merely because made at the inappropriate term. See People ex rel. Mayor, etc., of N. Y. •. Nichols, 79 N. Y. 582.
96 See paragraphs 27, 36, 56, 78, 84, 87. As to void orders, see paragraph 17. 97 Herzig r. Metzger, 62 How. Pr. 355 (order for new trial may be revoked in the discretion of the judge who made it).