obtain an order staying his adversary's proceedings. It must be applied for in form, as the mere taking exceptions, or making a case, has no effect of this description. Oakley vs. Aspinwall, 1 Sandf., 694.

Under the Code of 1849 this order, or a reservation of the cause for further argument, was held to be even essential for the purposes of a review. See Ball vs. Syracuse and Utica Railroad Company, 6 How., 198; 1 C. R. (N. S.), 410; but, since the amendment of 1851, this is no longer a matter of necessity, and a motion upon a case is still entertainable, notwithstanding the court may have allowed the entry of judg ment, to stand as security. See Benedict vs. Caffe, 3 Duer, 669; 12 L. O., 262. See rule 8 of Superior Court, above cited. See also Morange vs. Morris, 20 How., 257 (259); 12 Abb., 164.

But, where no special direction has been made upon the subject, and judgment has been entered in due course, it seems doubtful whether a motion for a new trial can be entertained, simply upon a case, or otherwise than by way of appeal. See Hastings vs. McKinley, 3 C. R., 10; Enos vs. Thomas, 5 How., 361; 1 C. R. (N. S.), 67; Jackson vs. Fassitt, 17 How., 453; 9 Abb., 137; affirmed, 33 Barb., 645; 21 How., 279; 12 Abb., 281.

See, as to the necessity of obtaining a stay, and not allowing judgment to be perfected, when the motion is made on the ground of surprise, Barnes vs. Roberts, 5 Bosw., 73.

A stay should, in all cases, be applied for, and, as a general rule, it will be granted, where there exists a fair question to be brought before the court, and the proceeding is not palpably frivolous or dilatory.

The application is usually made at the time of the trial, or as soon after as practicable, to the judge who tried the cause, and it is usual to incorporate with it, an order to extend the time to make and serve a case, if desired. In this event no special papers need be prepared, as the judge acts upon his own knowledge. If made at the time of the trial, in the presence of the parties, the entry on the minutes may be held sufficient; if made subsequently, the order should be formally drawn up, the judge's signature obtained, and a copy served on the adverse party.

This mode of application presents the additional advantage, that the order, when made by the judge who presided at the trial, has the effect of an order of the court, and is not affected by the limitation of twenty days, imposed by section 401, subdivision 6. The judge may, on the contrary, grant the stay, for any period he may deem reasonable. Harris vs. Clark, 10 How., 415; Steam Navigation Company vs. Weed, 8 How., 49; Livingston vs. Miller, 1 C. R., 117; Mitchell vs. Hall, 7 How., 490 (492).

The relief thus granted is wholly ex parte, and an ex parte order

may also be obtained from any other judge, at chambers or elsewhere. But, when the application is thus made, it must, of course, be grounded on affidavit, sufficient to satisfy the judge applied to, as to what actually took place at the trial, and likewise that the application is one proper to be granted.

An order of this description is subject to the twenty days' limitation, and cannot be safely taken ex parte, for any longer period. Nor can a series of ex parte orders, for twenty days each, be obtained. Sates vs. Woodin, 8 How., 349; Mitchell vs. Hull, 7 How., 490; Anonymous, 5 Sandf., 656; Mills vs. Thursby (No. 2), 11 How., 114.

Where, therefore, a general stay cannot be obtained from the judge who tried the cause, and more than twenty days is required, application to any other should be made upon notice, when any period that may be necessary may be asked for. An ex parte order for twenty days, in the first instance, accompanying this notice, will answer all objects. If the application be by order to show cause, it will form part of it.

Where the decision is by the court or referees, judgment must be entered, in the first instance, and an appeal taken, and security given on that appeal will usually effect all the purposes of an order.

But, where the party appeals to the general term, without giving security; or where, under the power given by section 348, he desires to obtain relief in this respect, an application must be made.

Where the case has been tried by the court, it will probably be held competent for the judge who tried the cause, to make an ex parte order of this nature. But, where another judge is applied to, or where the case has been tried by a referee, a motion on notice will be necessary, if a longer delay than twenty days is required, an ex parte stay being obtained in connection with it, as above pointed out.

Where exceptions have been taken, a direction that they be heard, in the first instance, at general term, with a suspension of judgment in the interim, under the terms of section 265, will of itself effect all the stay that is necessary. And, it seems, that a direction that they be so heard, entered on the clerk's minutes, may of itself effect a stay, though the consequent direction be omitted, through his inadvertence or neglect. Roosa vs. Snyder, 12 How., 285.

The stay to be applied, when the motion is on a case, or case and exceptions, on trial by jury, should be not merely until after the settlement of the case, but also until the hearing, and final decision of the motion founded thereon. This will save the necessity of a second application for the latter purpose. But, of course, the granting of such an order rests entirely in the discretion of the judge, and he may refuse to grant the whole, in the first instance. If so, the application must be repeated.

Where the motion is after judgment, the stay applied for should be until the hearing and decision of the appeal therefrom.

When the motion is made upon notice, it is, of course, competent for the adverse party to oppose, either generally, or with a view to the imposition of terms. If any statements of fact be necessary to sustain such opposition, they should be embodied in an affidavit. Want of good faith, or of merits, in the proposed review, will form ground of opposition. It may also be very important to show want of solvency, either actual or apprehended, on the part of the applicant, or that the subject-matter of the application will be imperilled by delay. On good cause being shown, the court will seldom refuse to impose proper terms. Amongst those likely to be granted, may be suggested, the allowing judgment to be entered up, to stand as security, or power to retain a levy made, or to make one for the same purpose.

It is, of course, equally competent for the adverse party to move to vacate an ex parte order, under similar circumstances.

A stay, when obtained, suspends all regular proceedings, until it ha expired, or is vacated, including the giving notice of judgment, if en tered, with a view to limit the time for appealing. Bagley vs. Smith, 2 Sandf., 650. But it will not prevent application being made for a provisional remedy, unconnected with the ordinary progress of the cause. Lapeous vs. Hart, 9 How., 541.

§ 241. Preparation and Settlement of Case or Exceptions.

(a.) TIME FOR PREPARATION.

The case, or exceptions, or case containing exceptions, must be prepared by the party seeking a review, and served upon his adversary within ten days after the trial, if by a jury, or after "written notice of the filing of the decision or report," if by the court or referees (rule 34), or, in the latter case, "within ten days after notice of the judgment." Sections 268, 272.

If this time be not sufficient, an extension should be obtained, either by 'consent, or by applying for an ex parte order, before the time has elapsed. If neglected, the right to make a case will be waived. Rule 35. As to the total waiver of the right to make a case, by laches, at a subsequent stage of the proceedings, see Whitney vs. Kimball, 6 Bosw., 690.

A party, seeking to limit his adversary's time, by service of a notice, will be held to strict practice. See Yorks vs. Peck, 17 How., 192; Demelt vs. Leonard, 19 How., 182. And the death of the party, after service, and before the expiration of the time limited by the notice, may involve the necessity of bringing in and noticing his executors,

before their rights can be precluded. See Beach vs. Gregory, 2 Abb., 203; affirmed, 1 Hilt., 201; 3 Abb., 78. As to the time for this purpose not running, until the receipt of the notice of judgment, where intermediate proceedings had been stayed, after notice of the original decision, see Leary vs. Roberts, 8 Abb., 310; 2 Hilt., 285.

Nor will the previous pendency, and the having made a case, upon a motion on the ground of newly-discovered evidence, affect the rights of the party to make a second case, for the purpose of an appeal, after failure of the first motion. Same case.

As to giving time to the moving party to decide upon his course, for the purpose of obtaining a review, in a case where doubts were entertained by him as to the proper practice, see Forrest vs. Forrest, 5 Bosw., 672

(b.) NATURE OF CASE.

The most usual mode of procedure is that of a case containing exceptions. This mode is appropriate when the verdict or decision is impeached for general error, both on the facts and the law. When no error in law is alleged, but the verdict of a jury is impeached for error on their part only, then a case, without exceptions, will be proper. When, on the contrary, the impeachment is for error of law only, exceptions, in the nature of the former bill of exceptions, will be all that is required.

A case and exceptions, on a trial by jury, should, when prepared, contain a correct statement of all that took place upon the trial, giving the evidence, or such portions of it as relate, directly or indirectly, to the questions on which a review is sought; stating all the different exceptions taken throughout that trial, as and when they arose; and comprising, lastly, the charge of the judge, and the verdict rendered by the jury.

If the charge be omitted, or imperfectly stated, the presumption will lie that it was correct, either wholly, or pro tanto, as to the omitted portions. Marine Bank of City of New York vs. Clements, 6 Bosw., 166.

A case without exceptions will be similar in all respects, omitting, of course, any statement as to the latter.

A case seeking the review of a trial by the court or by a referee, will, as a general rule, enter less into matter of detail. Where the decision is sought to be impeached in relation to a question of fact, the form of statement will be substantially the same as on a trial by jury, averring generally what passed, giving the evidence, so far as it is relevant to the proposed review, and noticing such exceptions as were taken. But, when, or so far as, the decision is impeached for errors of

law only, the mode of preparation will more nearly resemble that which obtains with reference to exceptions, as to which, see below.

To the statement in this form of what took place on the trial, must be added the decision or report of the judge or referee, and the exceptions, if any, of the unsuccessful party, filed under section 268 or 272. The draft of the specification, by the judge or referee, of the facts found by him, and his conclusions of law, required by the same section, should be also prepared and subjoined. It is not sufficient that these facts and conclusions appear upon the face of the decision or report. They must appear separately upon the case as made, and, although it is the duty of the judge or referee to make this specification and its terms rest, of course, entirely within his discretion, it has been also held the duty of the moving party to prepare and submit it. Like any other part of the case, it will be subject to amendment by the adverse party, and to settlement by the judge or referee. See also generally, as to the preparation of such a case, and especially as to the necessity of the statement in question being separately made, Hunt vs. Bloomer, 3 Kern., 341; 12 How., 567; Johnson vs. Whitlock, 3 Kern., 344; 12 How., 571; Griscom vs. Mayor of New York, 2 Kern., 566; Magie vs. Baker, 4 Kern., 435; Smith vs. Grant, 15 N. Y., 590; Otis vs. Spencer, 16 N. Y., 610; 15 How., 425; 6 Abb., 127; Westcott vs. Thompson, 16 N. Y., 613; Titus vs. Orvis, 16 N. Y., 617; Bissell vs. Hamlin, 20 N. Y., 519; Mills vs. Thursby (No. 11), 12 How., 417; Rogers vs. Beard, 20 How., 282; also p. 98; Cheesborough vs. Agate, 26 Barb., 603; 7 Abb., 32; Pope vs. Dinsmore, 29 Barb., 367; 8 Abb., 429. See also Turner vs. Haight, 16 N. Y., 465, head-note; Connolly vs. Connolly, 16 How., 224; Harden vs. Palmer, 2 E. D. Smith, 172; Barker vs. Crosby, 32 Barb., 184 (190); Matthews vs. Mayor of New York, 14 Abb., 209.

Where the judge who tried the cause had made a statement of facts found, subjoining his judgment, it was held that the conclusions enunciated in the latter must be considered as his conclusions of law, and that the only portions of that judgment which could, under the circumstances, be treated as conclusions of fact, were those which, if found at all, must, from their nature, have been necessarily found as facts. See Griffin vs. Cranston, 1 Bosw., 281 (304).

When the action has been tried by a jury, a case is absolutely necessary, where questions of fact are sought to be reviewed. If omitted, they cannot be brought up, upon an appeal from the judgment. Bedell vs. Commercial Mutual Insurance Company, 3 Bosw., 147.

And, where the complaint was dismissed, as to one distinct cause of action, and a verdict for the plaintiff, subject to the opinion of the court, taken as to another, it was held that the dismissal could not be reviewed, on the application for judgment. A separate case should