Page images
PDF
EPUB

TITLE 5. What

make or

ders out of court

without notice.

§ 772. Where an order, in an action, may be made by a judge of th judges may court, out of court, and without notice, and the particular judge is no specially designated by law, it may be made by any judge of the court in any part of the State; or, except to stay proceedings after ve report, or decision by a justice of the Supreme Court, or by a juc a superior city court within the city wherein his court is located, the county judge of the county where the action is triable, or in wh the attorney for the applicant resides. Where such an order grants provisional remedy, it can be vacated only in the mode specially pr scribed by law; in any other case, it may be vacated or modifie without notice, by the judge who made it, or, upon notice, by hir by the court.

The same.

Review of order made by county judge.

§ 773. The limitation, contained in the last section, of the cou.. judges who may make an order, does not apply to a case where it prescribed in this act, in general words, that a particular order may be made by a county judge or by any county judge.

§ 774. An order, made by a judge of a court, other than the court in which the action is pending, may be reviewed in the same manner if it was made by a judge of the court, in which the action is pendi When stay § 775. An order to stay proceedings in an action, for a longer time tl. ings not to twenty days, shall not be made by a judge, out of court, except to stay proceedings under an order or judgment appealed from, or where it made upon notice of the application, to the adverse party, or in ca where special provision is otherwise made by law.

of proceed

exceed

twenty

days.

Subse

quent application

for order nial, etc., oferta

after

plication.

Id.; as to application for judg. ment.

Penalty for violating last two sections.

§ 776. If an application for an order, made to a judge of the court, or to a county judge, is wholly or partly refused, or granted conditionally, or on terms; a subsequent application, in reference to the matter, and in the same stage of the proceedings, shall be made to the same judge, or to the court. If it is made to another judge of court, an order granted thereupon must be vacated by the judge who made it; or, if he is absent, or otherwise unable to hear the application, by any judge of the court, upon proof, by affidavit, of the facts § 777. Where an application is made to the court for judgment, cannot be withdrawn, without the express permission of the court; an a subsequent application for judgment shall not be made, at a ter held by another judge, except where the first application is so with drawn; or where the directions, given thereupon, require an act to be done, before judgment can be rendered; or where the fact of the former application is stated, and the proceedings thereupon, and su' sequent thereto, are fully set forth, in the papers upon which the app. cation is made.

§ 778. A person making an application, forbidden by the last tw sections, with knowledge of the previous application, shall be punishe by the court, for a contempt.

$779. Where costs of a motion, directed by an order to be paid, ar not paid within the time fixed for that purpose by the order, or, if n time is so fixed, within ten days after service of a copy of the orde all proceeding on the part of the party required to pay them are stayed without further direction of the court, until the payment thereo But the adverse party may, at his election, waive the stay of proceed ings. Where the order directs that the costs of the motion abide th event of the action, or where costs of a motion, awarded by an orde have not been collected, when final judgment is entered, they may taxed, as part of the costs of the action, or set off against costs award to the adverse party, as the case requires.

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][subsumed][ocr errors][subsumed][subsumed][ocr errors][subsumed][merged small][merged small][merged small]
[merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][ocr errors][ocr errors]
[ocr errors][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small]

be eight

§ 780. Where special provision is not otherwise made by law, or by Notice of general rules of practice, if notice of a motion, or of any other motion, to eding in an action, before a court or a judge, is necessary, it must, days. ersonally served, be served at least eight days before the time ppointed for the hearing; unless the court or a judge thereof, upon an fidavit showing grounds therefor; makes an order to show cause, why he application should not be granted; and, in the order, directs that rvice thereof, less than eight days before it is returnable, be sufficient.

before its

781. Where the time, within which a proceeding in an action after How time commencement, must be taken, has begun to run, and has not ex- enlarged, ired, it may be enlarged, upon an affidavit showing grounds therefor, expiration. y the court, or by a judge authorized to make an order in the action.

affidavit must be served.

time has expired.

§ 782. In a case specified in the last two sections, the affidavit, upon copy of which the order was granted, or a copy thereof, must be served with a opy of the order; otherwise, the order may be disregarded. §783. After the expiration of the time, within which a pleading Relief after aust be made, or any other proceeding in an action, after its commencenent, must be taken, the court, upon good cause shown, may, in its iscretion, and upon such terms as justice requires, relieve the party rom the consequences of an omission to do the act, and allow it to be e; except as otherwise specially prescribed by law. -784. A court, or a judge, is not authorized to extend the time, When time ed by law, within which to commence an action; or to take an extended. ippeal; or to apply to continue an action, where a party thereto has lied, or has incurred a disability; or the time fixed by the court, vithin which a supplemental complaint must be made, in order to conque an action; or an action is to abate, unless it is continued by the per parties. A court, or a judge, cannot allow either of those acts be done, after the expiration of the time fixed by law, or by the

cannot be

TITLE 6.

Qualifica tion of last section.

Orders in certain ac

published.

order, as the case may be, for doing it; except in a case specified in the next section.

[ocr errors]

§ 785. Where a party, entitled to appeal from a judgm
or to move or set aside a final judgment for error in fact. 4.x, el
before or after this chapter takes effect, and before the

[ocr errors]

the time within which the appeal may be taken, or the n tar. med the court may allow the appeal to be taken, or the motion to po mate. by the heir, devisee, or personal representative of the decedent, at an time within four months after his death.

§ 786. Where an action is brought for the collective bene it of th tions; how creditors of a person, or of an estate, or for the benefit of a person persons, other than the plaintiff, who will come in and contribute t expense of the action, notice of a direction of the court, contained i judgment or order, requiring the creditors, or other person or person to exhibit their demands, or otherwise to come in, must be ablished once in each week, for at least three successive weeks, and as much longer as the court directs, in the newspaper, published at Albany, in which legal notices are required to be published, and in a newspaper, published in the county where the act is required to be done.

Time for publication

how com

puted.

§ 787. The period of publication of a legal notice, in an action or of notice; special proceeding, brought in a court, either of record or not of record, or before a judge of such a court, must be computed, so as to exclude the first day of publication, and include the day, on which the act or event, of which notice is given, is to happen, or which completes the full period of publication.

Time for doing any

§ 788. The time within which an act, in an action or special proceedact; how ing, brought, as specified in the last section, is required by law to be computed. done, must be computed, by excluding the first, and including the last day; except where it is otherwise specially prescribed by law. If the last day is Sunday, or a public holiday, it must be excluded. Where the act is required to be done within two days, and an intervening day is Sunday, or a public holiday, it must also be excluded.

Preference of certain

ARTICLE SECOND.

PREFERRED AND DEFERRED CAUSES.

SECTION 789. Preference of certain actions by the people.

790. Id.; of criminal actions.

791. Id.; among civil actions.

792. Id.; in mandamus or prohibition.

793. When an order is necessary.

794. When cause passed, how placed upon the calendar.
795. Note of issue to state time when passed.

§ 789. A trial, motion, appeal, or hearing, in an action by the peoactions by ple to recover money, funds, credits, or other property, held or owned the people. by the State, or held or owned, officially or otherwise for, or in behalf of, a public or governmental interest, by a municipal or other public corporation, or by a board, officer, custodian, agency or agent of the State, or of a city, county, town, village, or other division, subdivision

« PreviousContinue »