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It is further ordered that a copy of this order and said affidavit of A. T. be served upon the following persons [designating them and prescribing the manner of service], on or before the day of , 19.

Enter: [signature of judge by initials of name and title].


FORM No. 2117.
Note of issue on appeal in enumerated motion.77
Appellate Division of the Supreme Court;
[First] Department.

A. T., attorney for plaintiffA. B., plaintiff, and appellant [address]. [appellant],

Appeal from judgment entered af

.ter trial before Mr. Justice J. against

K. (or if after trial by referee, say:78 on report of R. F., Esq.,

referee, filed the day of Y. Z., defendant and

, 19. [respondent]. T. Z., attorney for defendant

J respondent [address].
Notice of appeal served79 , 19
The appellant claims a preference on the ground that (state).So
[Signature and office address of],

Attorney for
FORM No. 2118.

Notice of argument. [Title of appellate court, and action.]

Take notice, that the appeal in this action will be brought on for argument before the justices of this Honorable Court, at

77 In the Court of Appeals, a copy of the notice of argument, specifying the judicial district in which the cause originated, with proof, or ad inission, of service, is filed with the clerk instead of a note of issue.

File eight days before first day of term, except in First Department, where special rules require filing fil. teen days before. Gen. Rule No. 39; Special First Dept. Rule No. V. In the First Department, there must be filed with the note of issue, the ap

peliant's notice of argument and proof of service, sixteen copies of his case and sixteen copies of his points, with proof of service on his adversary of three copies of each.

78 Gould v. Cha pin, 5 How. Pr. 358.

79 On an appeal from an inferior court, specify the date of filing the return instead of date of service of notice of appeal.

80 If dependent upon an order, annex copy of order,

a term thereof appointed to be held in the [First] Department at the Court House of the said Appellate Division, Madison avenue and Twenty-fifth street, in the borough of Manhattan in the city of New York,] on the day of , 19 , at the opening of court on that day, or as soon thereafter as counsel can be heard. [And on an appeal to the Court of Appeals in a cause entitled to preference, add:] And the undersigned claims this to be a preferred cause, upon the ground that it is [specifying the ground so as to show the class. ]81 [Date.]

[Signature and office address of], [Address] To

Attorney for [moving party]. Attorney for [adverse party]. !

[And in the Court of Appeals: To W. H. Shankland, Esq., Clerk of the Court of Appeals.82]

FORM No. 2119. Notice requiring the appellant to file return.83 [Title of appellate court, and action.]

Please take notice, that the respondent A. B. requires the appellant Y. 2. to cause the return in this cause to be filed with the clerk of the Court within ten days after the service of this notice. [Date.]

[Signature and office address of], [Address] To

Attorney for respondent. Attorney for appellant.

FORM No. 2120.

Notice of motion to dismiss appeal. [Title of the appellate court,84 and action.] Take notice that [on the annexed affidavits of verified the day of

, 19

] the respondent will move the court,

l the at a Term thereof, to be held at the City Hall [or, Capitol], in the city of , on the day of , or as soon thereafter as counsel can be heard, to dismiss the appeal from the judg. ment herein [or, the order - describing it] on the following grounds [enumerating all of them] 85 and for such other relief as may be just, with costs of motion. [Date.]

81 Rule 14 of N. Y. Court of Appeals; N. Y. Code Civ. Pro., 88 789793.

82 See note 77 to preceding Form.

83 Sce Rule 1, N. Y. Court of Appeals.

84 The appellate court only can dismiss the appeal. Spindler 1. Gibson, 72 App. Div. 150, 70 N. Y. Supp. 410. 85 A party must assign all the exist ing reasons he has for the dismissal, and a subsequent motion (after denial of the first) will not be heard if based upon a ground which might have been brought to the attention of the court upon the first motion. Ferguson v. Bruckman, 164 N. Y. 481.

[Signature and office address of], [Address] To

Attorney for respondent. Attorney for appellant.

FORM No. 2121.
Notice of motion to Court of Appeals to dismiss appeal.
Court of Appeals.

Please take notice that upon the annexed affidavit of verified the day of , 19 , and upon the return to the Court of Appeals heretofore filed by you and now on file with the clerk of said court, the undersigned will move, at a term of the Court of Appeals to be held at the capitol in the city of Albany on the day of , 19 , at 2 o'clock in the afternoon of that day, or as soon thereafter as counsel can be heard, for an order dismissing the appeal taken by the [defendant] to the Court of Appeals in the above-entitled action from the [describe as in notice of appeal], upon the following grounds, viz. :

[First. That the court has no jurisdiction to review said judgment or order of the Appellate Division for the reason that the same were entered in an action to recover compensation for services rendered, and that the decision of said Appellate Division was unanimous, and that no appeal has been allowed either by the Apnellate Division or by a judge of the Court of Appeals.

Second. On the further ground that no question of law is inrolved in this appeal; that the verdict upon which the judgment was entered was not directed by the court, and that the Appellate Division has unanimously decided that there was evidence tending to support the verdict; and that the only exceptions appearing in the record are frivolous.] 88

in an action sion of said Appel either by the

See next Form for motion in the Court of Appeals, based on various grounds.

86 All grounds must be presented upon a single motion. Ferguson 0. Bruckman, 164 N. Y. 481.

FORM No. 2122.
Order dismissing appeal.87

At a Term of the Appellate Division

[etc.; see Form 820, p. 1175]. [Title of action.]

The above-named respondent having moved to dismiss the appeal from the [specify], and said motion coming regularly on to be heard; now, on reading and filing the notice of said motion, and the affidavit of C. D., verified the day of

,19 , and on motion of A. T., attorney for the respondent, after hearing 0. P. [or, no one appearing] for the appellant; it is hereby

ORDERED, that the motion to dismiss the appeal taken by A. B. from the judgment [or, order] entered herein on the day of

, 19, be and the same is hereby granted, and said appeal is hereby dismissed, with costs including ten dollars costs of this motion to respondent [if further opportunity is allowed to perfect the appeal, continue:] unless the appellant within days from the date of service of a copy of this order together with notice of entry thereof, pays to the respondent the ten dollars

87 Where the application is made before the appeal is brought to a hearing, it should be made upon notice; but where the appeal has been reached upon the calendar and been heard, and the court has rendered a decision that the appeal should be dismissed, then the order may be made and entered as of course without previous notice.

Motions on notice to dismiss an appeal are often made because of the non-appealability of the decision below (particularly in the Court of Appeals, because of its restricted jurisdiction) or (in that court) be. cause of the frivolous character of the exceptions presented for review (see Legendre v. Scottish Un., etc., Ing. Co., 183 N. Y. 393); or, because of the non-service of printed copies of the appeal papers pursuant to the rules of court.

By N. Y. Gen. Rule No. 41, if the party whose duty it is to furnish the papers upon an appeal in case of an enumerated motion shall neglect to do 80, the opposite party is entitled to

move on affidavit and three days' notice for an order dismissing the appeal, or that judgment be rendered in his favor, as the case may be; it is further provided that such a motion may be noticed for any motion day, and that if the appellant fails to serve the proper papers in case of an appeal from a non-enumerated motion, “the respondent may move on three days' notice, on any motion day in the term, to dismiss the appeal.”

A motion to dismiss an appeal must, as a rule, be made to the appellate court and at the Appellate Division, rather than at a Special Term thereof. See Volume I, p. 97, and cases cited.

But a motion to dismiss an appeal from an inferior court on grounds apparent upon the appeal papers, has been sustained at Special Term of the appellate court, although the Appel. late Division to which the appeal is taken has the like power to dismiss, and the almost invariable practice would be to make the motion in the appellate branch. Id.

costs of motion and (set forth what is to be done by appellant],99 in which event this motion is denied, without costs. Enter: [signature of presiding judge by initials of name and

official title.]

FORM No. 2123.
Order of affirmance.89
At a Term of the Appellate Division

of the Supreme Court, [etc.; as in

Form 820, p. 1175 of this volume). [Title of action.]

The plaintiff above named having appealed from the judgment [or, order] entered in this action on the day of , 19 , for dollars [or if for special relief, designate it), and said appeal having been duly heard, and after hearing A. T. of counsel for plaintiff-annellant, and T. Z., counsel for the defendant-respondent, and due deliberation having been had; (and the court having unanimously decided that the findings of fact are — or, the verdiet is — supported by the evidence - as to all of the defendants) :30 Now, on motion of T. Z., attorney for said respondent, it is [UNANIMOUSLY]o1

e plaintif-am


the findings to all of

83 This order, although granting further opportunity, operates as a dismissal of the appeal, without any further order. See Mahon v. Mahon, 64 App. Div. 262, 72 N. Y. Supp. 102.

A default in having the case settled, signed, or filed, must be opened at Special Term. The Appellate Division may give opportunity to apply to open such a default, and perfect the appeal. See Vendenbergh v. Mathews, 52 App. Div. 616, 65 N. Y. Supp. 365, 7 Anno. Cas. 484.

A dismissal of the appeal ends the jurisdiction of the appellate court. Westerfield r. Rogers, 174 N. Y. 230.

S. c., partly reported in 81 X. Y, 644;
Direct l'. S. Cable Co. 0. Dominion
Tel. Co., 84 id. 153.

But the grounds may sometimes be gathered from the grounds stated in the original order below, if it is in all things affirmed by the order of the Appellate Division. Equitable Life Ins. Soc. l'. Stevens, 63 X. Y. 341; Howlett v. Wood, 67 id. 394.

If a judgment upon appeal may, so far as the record speaks, have proceeded upon either of several grounds, extrinsic evidence is admissible, in a subsequent action, to ascertain what was really decided. Esterbrook 0. Savage, 21 Hun, 145, and cases cited; and see Bell v. Merrifield, 109 N. Y. 202.

89 In general an appellate court in reviewing such an order or the judgment entered thereon, can only look to the terms of the order or judgment to ascertain the grounds on which it was made. Matter of Mosher, 183 N. Y. 568; Hinckel v. Stevens, 165 id. 171; Snebley v. Connor, 78 N. Y. 218; Fisher v. Gould, 81 id. 228; Noyes v. Children's Aid Soc, of New York, 70 id. 481; Townsend v. Nebenzahl, 8 Abb. N. C. 427;

90 Code Civ. Pro., $ 191, subd. 4.

91 If it does not appear from the order or judgment that an affirmance by the Appellate Division was unanimous, the Court of Appeals will assume that it was not, and will determine whether the evidence was sufficient to warrant the submission of the case to the jury, where the de

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