« PreviousContinue »
applying that restriction. It may, therefore, make a material difference in the result whether the order is so drawn as to recite that the court heard the moving party and duly considered the question.
32. — in opposition.]— The same principles apply to the significance of recitals that the motion was opposed.
If a person who received notice did not appear, notice and proof of service should be included among the papers mentioned as those on the reading and filing of which the motion is granted.
If a person appeared and was heard, the fact should be recited, and this takes the place of a recital of notice, even if he was not a party to the action.43
If the motion is one not uncommonly granted by consent, and En order granting recites that the adverse parties were “heard,” but does not indicate that opposition of objection was made, it inay afterward be presumed, in support of the order, that it was assented to, and all irregularities waived.
The ground of opposition may be stated in the same manner as the ground of the motion, and this may be desirable in some cases, especially where the objection goes to the regularity of the proceedings, or is founded on defects in the moving papers; otherwise it might not appear to the appellate court that the ground of appeal was the subject of objection below.45
33. Qualified appearance. ] - If counsel or attorney appear for the purposes of the motion only, the mention of the appearance in the order should be qualified accordingly.
34. Deliberation. In the order on a contested motion it is well to recite due deliberation had; for such a recital is often regarded as material on appeal.
35. Moving attorney.]— It is usual and appropriate to conclude the recitals after naming the counsel, if any, who appeared upon the motion, by naming the attorney for the successful party
12 See, for instance, Seneca Nation v. Knight, 19 N. Y. 587. 43 Jay v. De Groot, 2 Hun, 205; Crane v. Stiger, 58 N. Y. 625.
44 Macy v. Nelson, 62 N. Y. 638. (Order of reference, reciting that it was granted after "reading the pleadings and hearing the counsel for the respective parties.")
15 See cases cited in note to paragraph 30, supra.
as the one on whose motion the order is made. This must, of course, always be the attorney of record if the party has formally appeared by attorney.
. V. THE ORDERING PART. 36. Limit of relief.— Explicitness.]— The general principles by which the measure of relief is limited by the terms of the notice or order to show cause, have been already discussed. 46
It is only necessary here to add on that point, that one taking an order by default must see that he takes no more than his papers eutitle him to; 47 and that an order denying a motion, on the hearing of which the moving party asked relief under the general prayer, beyond the specific relief asked in the notice or order to show cause, should recite the request, in order to preclude, in some cases, the making of a fresh motion for such other relief, without leave. 48
To avoid ambiguity which may embarrass proceedings for contomupt, an order directing payment or delivery should designate the sum of money or thing distinctly, and express or unmistakably imply to whom it is to be paid or delivered.
Where several applications are decided or several directions are. given in the same cause at the same time, unless the court otherwise direct, the whole should be embraced in one order. And if anything is omitted, the other party should not enter an additional order, but apply to have it corrected. 49
An order entered by either party without notice of settlemert given to the other, must not go beyond the decision, even so much as to grant costs.50
40 See title Motions, su pra, paragraphs 159-162.
47 Farrington v. Wright, 1 Minn. 241; Anderson 1. Johnson, 1 Sandf. 713, 1 Code Rep. 95. See also paragraph 162, page 154, of this volume, title MOTIONS.
48 Thus where defendant moved to vacate an arrest and for general relief, and an order was entered “ denying the motion” without saying what relief was denied, held, that the order did not make leave necessary for a subsequent motion to reduce bail, and that an affidavit that upon the hearing the defendant, after the court refused to vacate the arrest, moved to reduce the bail and this was denied, did not avail to give the denial effect bevond a denial of the specific relief asked. Smith v. Spalding, 3 Robt. 515, 30 How. Pr. 339.
49 Hunt v. Wallis, 6 Paige, 371.
50 Williams v. Murray, 2 Abb. Pr. (N. S.) 292, so held in granting a motion to set aside the “ different order " so entered, unless the party pay costs of this motion, and directing that the order of court be corrected; 32 How. Pr. 187. See, also, paragraph 165, page 155 (above).
37. Optional order. ]- An order granting the moving party a favor, is not imperative upon him unless so expressed. 51 Thus an order granted“ upon payment of costs ” does not compel payment unless the party takes the benefit of the order; but to secure its benefit he must seasonably seek the adverse party or his attorney ad tender them,62 or the order may, and usually should, specify the time within which the payment or condition must be met. If no time limit is incorporated in the order for making payment, the attorney is not excused by awaiting a remittance from his client before so doing.
38. Grounds of decision.] - If a motion is denied on grounds of irregularity in making it,54 or for supposed want of jurisdiction or of power to grant it,45 the right to renew the motion, or to
51 Symson v. Selheimer, 105 N. Y. 660; Matter of Waverly Waterworks, 85 N. Y. 478; Neill v. Wuest, 17 Abb. Pr. 319, note; Pugsley v. Van Alen, 8 Johns. 352 (order granting motion to set aside default “ upon payment of costs,” is not an order to pay them, but payment is a condition).
52 Pugsley v. Van Alen, Johns. 352. 53 Sabin 0. Johnson, 7 Cow. 421.
54 In Matter of Townsend 1'. Nebenzahl, 8 Abb. N. C. 427, on appeal from an order affirming an order which discharged defendants from arrest in special proceedings under the Stilwell Act, the Court of Appeals (p. 435) say: “It appears from the order made by the learned justice, discharging the defendants from arrest, that it was made upon due consideration of the proof in the matter and the affidavits on which the warrant was granted. It appears from the order of affirmance made at general term that no ground is stated in it on which it went. We may not say from the orders that they were not made upon the merits, and the proof in the case had failed to satisfy the learned courts below, that a case was made out for the commitment, nisi, etc., of the defendants. When that is the case we may not, when an order of arrest or commitment has been denied, review the order. We have no jurisdiction to do so, and must dismiss the appeal. It is true that the opinions delivered by the learned justices do not so state; but it is the law that we may not look into the opinions to find matter there differing from that in the order, unless the language of the order is ambiguous and needs aid for an understanding upon which it went." See also Fisher v. Gould, 81 N. Y. 228.
So in Thorington v. Merrick, 101 V. Y. 5; 3 East. Rep. 207, 3 N. E. Rep. 794, the familiar rule was applied that an appeal does not lie to the Court of Appeals from an order vacating an attachment which does not show the ground on which it was vacated, for the vacatur is deemed discretionary; S. P., People r. Vat. Trust Co., 31 Hun, 20.
55 Bernheimer 1. Ricketts, 91 N. Y. 669; Winch v. Farmers' Loan & T. Co., 11 Misc. 390, 32 N. Y. Supp. 244; 8. P., Bate v. McDowell, 97 N. Y. 647.
The importance of having the ground of the order appear is enhanced, when the unsuccessful party desires to appeal, and the papers are such that if the ground does not appear the order might be deemed to have been made m sufficient, though purely technical grounds, as, for instance, that the motion denied by the order, though founded on irregularity, did not specify in the notice what the irregularity was. Lewis v. Graham, 16 Abb. Pr. 126.
sustain appeal from the order, may depend on whether the order states such to be the ground. An appellate court cannot compel the lower court to specify a particular ground as the basis of its order. 56
If the order does not indicate the grounds on which it was made, it may be sustained against an appeal, by any sufficient ground substantiated by the papers on which it was made.57
On an appeal to the Appellate Division that court usually look to the opinion, if any was given in writing and is printed in the appeal papers, to support the order; 58 the Special Term, upon reliewal of a motion upon new facts, have no right to resort to the opinion of the Appellate Division on denying the former motion, to discover the ground for its denial.
39. Conditions: -- power to impose.]— On a motion addressed to the judicial favor or discretion, and not depending on strict legal right, the court or judge has power to impose terms to be complied with by either party, as a condition of granting an order in his favor. For non-compliance with such a condition only results in an absolute decision which might have been made on the discretionary motion without offering the party the alternative (f a contrary decision on condition.
But if the granting or refusal of an order is a matter of strict legal right, it is error to impose conditions unless they are assented to.
56 Hall v. Gilman, 87 App. Div. 248, 84 N. Y. Supp. 279; Davis 1. Reflex Camera Co., 99 App. Div. 567, 90 N. Y. Supp. 877.
57 Glines v. Supreme Order, 21 N. Y. Supp. 543. The exception to this rule, in the case of an order of the Appellate Division which reverses a judgment below, will be noticed under APPEALS.
58 The language of an order of the Appellate Division, as disclosing the ground of its decision, may now be determinative of the right to appeal to the Court of Appeals; the subject will be found treated in vol. 2, under title, APPEALS.
69 Malone v. St. Peter, etc., Church, 83 App. Div. 80, 82 N. Y. Supp. 519. 60 Such as, an application for extension of time, to open a default or the like,
61 Matter of Waverly Waterworks Co., 85 N. Y. 478 (order imposing terms in excess of taxable costs and disbursements as a condition of granting a motion for leave to discontinue, held proper, and error to reverse it).
62 Matter of Waverly Waterworks, supra.
63 As, for instance, the vacating of an illegal execution. Matter of Bradner, 87 N. Y. 171; Tompkins v. Smith, 48 Super. Ct. 113, 62 How. Pr. 499, and 2 Civ. Pro. Rep. (McCarty), 21, aff'g 1 Id. 398; aff’d, 89 N. Y. 602, with. out opinion; Chapin v. Foster, 101 N. Y. 1, 3 East. Rep. 206. Otherwise of vacating an order because a proper case was not made out, if there was enough to call for the exercise of the judicial power. Fischer v. Langbein, 103 N. Y. 84, 7 East. Rep. 299, where the subject is fully discussed.
But a party who avails himself of the benefit granted by an order will not be allowed to complain of the condition imposed
by it. 64
40. - form.]— The word “upon” sufficiently marks a condition precedent in an order. 66
41. — time for performance. ]— If an order requires an act or imposes a condition to be performed forthwith, it must be done as soon as, by reasonable exertion confined to that object, it may be; twenty-four hours being usually allowed for such acts as filing papers, etc.66
In the case of payment of costs, the settled meaning of " forthwith” is within twenty-four hours; 67 and at common law the same limit has often been applied when an order says nothing about the time of payment.
Under the New York statute,68 the party directed by order to pay money for costs or otherwise, has ten days after service of a copy of the order in which to pay before execution can be issued on the order, unless the order fixes or limits the time for payment.
42. Enforcing conditional order.]—Where a motion is granted conditionally upon the performance of the condition by the moving party, the order becomes absolute upon performance. If an offer of performance is rejected by the adverse party, the safer course is to apply, on proof of tender, for an absolute order, unless the circumstances are such that proceeding upon the order as absolute will bring the question before the court or judge equally well.
64 Strong r. Jones, 25 Hun, 319; Driscoll v. Downer, 55 Hun, 534, 9 N. Y. Supp. 129; Morris v. Thomas, 80 App. Div. 47, 80 N. Y. Supp. 503.
An order to amend and pay costs, does not make payment a condition precedent. Sturtevant v. Fairman, 4 Sandf. 674.
66 Champlin v. Champlin, 2 Edw. 328 (holding the rule the same in chancery as at law). S. P., as to a similar provision in statute, Sweet v. Marvin, 2 App. Div. 3, 37 N. Y. Supp. 443; and in contracts, Bennett v. Lycoming Co. Ins. Co., 67 N. Y. 277.
67 Sabin r. Johnson, 7 Cow. 421 (holding that the attorney could not wait till he could hear from his client).
68 N. Y. Code Civ. Pro., § 779, superseding a court rule which allowed twenty days.
6 People r. Lowber, 7 Abb. Pr. 158 (order that judgment be set aside and proceedings stayed on condition that the moving party, within thirty days, bring a cross action and file a bond, held to become absolute, without a new stay, by substantial performance).