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The former method is sufficient when a certified copy is required in practice, in the course of proceedings in the same court as that in which the original file or record is.
In proceedings in another court, it is the safer practice, when a certified copy is relied on in support of a motion or other application to the court, to take a full certificate such as would be evidence on a trial.
As certified copies are in practice often prepared by the attorney, and sometimes certified by the officer without careful examination, a scrutiny of its accuracy by the one on whom such a copy is served, occasionally proves useful.
7. Exemplified copies.]—An exemplification or exemplifed copy may be said to be a duplicate of the record or the document cn file, authenticated under the great seal of the State, or the seal of the court, with a certificate from the authorities appearing to have official custody of the record, that they have caused it to be exemplified.85 This method originated in the time when records were engrossed on parchment rolls, and an exemplification was a sort of repliqua or reproduction of the form as well as the contents of the original scroll.86 In legal effect under modern procedure, an exemplified copy does not differ from a certified copy except that it is still required by some statutes for the purpose of entering and adopting a judgment of one court in the records of another court.87 It is indeed only a more unusual, and therefore considered as a more solemn, variety of certified copy.
85 See Abb. Tr. Ev. (2d ed.). See chapter on Means of Evidence, post, rol. II.
86 It was, for instance, sometimes used as a substitute for the original on a trial by the record of an issue of nul tiel record.
87 See, for instance, N. Y. Code Civ. Pro., $ 1595 (judgment in partition, to be rerorded in other counties).
Id., $8 2631, 2632, etc., 2695, 2703 (foreign will admitted to probate).
EXTENSIONS OF TIME.
1. Distinction between extension
and stay of proceedings. 2. Extension, how obtained. 3. Extending limits fixed by rule
or practice. 4. - by statute.
5. Length of time.
1. Distinction between extension and stay of proceedings.]-A stay of proceedings does not extend the time which either party has for doing an act, although it incidentally postpones the time for doing an act if the time for doing it has not yet commenced running, and will not commence while the stay continues. On the other hand an extension of time does not effect a stay of any proceeding except by delaying those of such a nature that the right or obligation to take them does not arise until the time extended has passed.
Thus an order staying plaintiff's proceedings does not extend defendant's time to answer,88 although a stay of plaintiff's proceedings which prevents him from serving his complaint would of course postpone defendant's answering. On the other hand an extension of time to answer does not stay plaintiff's proceedings any further than to postpone his right to proceed as in default o an answer until the extension has expired.
2. Extension, how obtained.]— Extensions of time are obtaine either by consent, in which case a written stipulation is essentia to secure against retraction,89 or by an order of a judge autho ized to make an order in the action applied for on affidavit sho ing the grounds therefor and what previous extensions, if an have been granted by order or by stipulation, and containing
88 Platt v. Townsend, 3 Abb. Pr. (N. Y.) 9, 5 Duer, 668; White v. Smi 16 Abb. Pr. 109 n.; McGown v. Leavenworth. 2 E. D. Smith, 24; Sniffen Peck, 6 Civ. Pro. R. (Browne) 188. An extension of time is not a “ stay proceedings within the twenty-days limit on ex parte chambers' order stay, under N. Y. Code Civ. Pro., § 775. Sisson v. Lawrence, 16 Abb. 259 n., 25 How. Pr. 435; White 1. Angel, 2 Civ. Pro. R. (McCarty), Condon v. Church of St. Augustine, 14 Mise. 181, 35 N. Y. Supp. 382.
89 N. Y. Gen. Rule 11 requires all stipulations to be evidenced by a writ See explanations as to Stipulations, Article XXIII of this chapter.
oath to merits.90 Such an order is obtained ex parte, except as below noted.91
In New York such an order may be made by the county judge in a Supreme Court cause, and by a Supreme Court judge in the cases respectively stated in the explanations respecting Motions.92
When the time to serve any pleading has been extended twenty days by stipulation or order, no further time shall be granted by order except upon two days' notice to the adverse party of the application for such order. 93
3. Extending limits fixed by rule or practice.]— Where the limit of time which it is sought to extend is fixed not by statute but by the rules or practice of the court the general power of a court to control its own proceedings enables it to enlarge the time in its discretion; and this power is expressly sanctioned by a standing rule in New York, 94 which allows a judge of the court to exercise the same power in this respect as the court itself.95 Any such order may be revoked or modified by the judge who made it, or, in case of his absence or disability, by any one of the other judges of the court.
The cases in which (except by consent) no extension of the time fixed by the court itself can be granted are those of the time within which it has been ordered that a supplemental complaint must be made to continue an action, or within which an action is to abate unless it be continued by the proper parties.
4. - – by statute.]—Where the limit for doing an act is fixed by statute, the court has not power to enlarge the time unless such power is conferred by statute; and this is done by the New York Code, which (subject to certain exceptions below stated) provides that “where the time within which a proceeding
90 N. Y. Gen. Rules, No. 24.
91 Travis v. Travis, 48 Hun (N. Y.), 346; Condon v. Church of St. Augustine, 14 Misc. 181, 35 N. Y. Supp. 382.
92 See Article IV, on MOTIONS, paragraphs 45–50.
93 N. Y. Gen. Rule, No. 24. And, by Rule 32, a two days' notice is required upon applications for time to serve a case, or propose amendments thereto. Notice of application for an extension of time to answer or demur must be given when defendant is a corporation and is sued upon an instrument for the absolute payment of money. N. Y. Code Civ. Pro., § 1778.
24 N. Y. C. of App., Rule 18. And see Gen. Rules, No. 24. 95 Id.
See article XIV on MOTIONS. 36 N. Y, Code Civ. Pro., § 784.
in an action after its commencement, must be taken, has begun to run and has not expired, it may be enlarged, upon an affidavit showing grounds therefor, by the court, or by a judge authorized to make an order in the action.97
The cases in which (except by consent) no extension of a statute limited time can be granted, either before or after the time has elapsed, are's those of the time within which to commence an action, to take an appeal,99 and to apply to continue an action where a party thereto has died, or has incurred a disability.
5. Length of time.]— The length of an extension is in the discretion of the court or judge. The twenty days' limit on a judge's ex parte order staying proceedings does not apply to extensions of time. 1
6. Mode of computing time.]— In legal proceedings, when a specified number of days, weeks, or months of time is to be reckoned, the first day is not counted and the last is counted. If the last day of a required number of days be Sunday or a holiday, other than a half-holiday, it is not counted. Where an act is required to be done within two days, and an intervening day is Sunday or a holiday, it is excluded.4
The rule that fractions of a day are not usually regarded only applies when the precise time is not material."
97 N. Y. Code Civ. Pro., § 781.
98 N. Y. Code Civ. Pro., § 784. There is, however, a saving clause, under which four months can be given to the representatives where a party entitled to appeal dies before the time has expired. $ 785.
99 N. Y. Code Civ. Pro., & 784.
1 N. Y. Code Civ. Pro., § 775; Sisson v. Lawrence, 16 Abb. Pr. (N. Y.) 259, 25 How. Pr. 435; Condon v. Church of St. Augustine, 14 Misc. 181, 35 N. Y. Supp. 382. The court has no power to grant an indefinite extension, the effect of which would be to extend the statute of limitations. Merchants' Nat. Bank v. Corn Exch. Bank, 68 Hun, 95, 22 N. Y. Supp. 643.
2 N. Y. Statutory Construction Law (L. 1892, chap. 677), $8 25-27. But this rule does not apply in reckoning years, when the day upon which the event happens is not to be excluded. Aultman & Taylor Co. v. Syme, 163 N. Y. 54; Connecticut Nat. Bank v. Bayles, Id. 561.
3 Id., $ 27; Bristad v. Harrell, 20 Misc. 348, 45 N. Y. Supp. 918. When the intervening period is a specified number of years, and the last day falls on Sunday, or a holiday, the provision of the section does not apply, and the day will not be excluded. Benoit v. N. Y. Central, etc., R. Co. 94 N. Y. App. Div. 24 The reasoning of this case will apply also to a period consisting of a specified number of weeks or months.
4 Id., § 27.
5 Marvin v. Marvin, 75 N. Y. 240 (except when the precise time is material, as in questions of priority of liens, etc.). See also Prentiss v. Bowden,
A stipulation or an order granting additional time does not commence to take effect until the time thereby extended would have expired had no stipulation or order been made; unless a different intent is indicated.
7. Moving affidavit.]— The affidavit should be to the meritz, and should state as well the cause of action and the relief demanded in the complaint and the reason for wanting more time, as well as what previous extensions have been had and what previous applications therefor made;? and adequacy in satisfying these requirements may be no less important if a judge's order is taken•ex parte, than if it is asked on notice, for an order granted ex parte may be vacated by the same judge ex parte, leaving the party who took it in default without warning.
8. Duration of extension.]— The time expires, of course, with the termination of the extension, so that an extension till a future event — as for instance until the determination of a motion ceases on the occurrence of the event, leaving no opportunity to act. Hence in, such case the extension should more properly be for a specified time after the event.
An extension to or until a specified day, includes that day, unlesz a different intent is indicated.
9. Notice of extension.]— If the order is ex parte, it is not enough to give notice of its being granted. It is necessary to serve upon the adverse party a copy of the order and a copy of the affidavit on which it was obtained; and if this be not done he may
10. Vacating. ]— If the extension was granted by a judge ex
8 Misc. 420, 28 N. Y. Supp. 666; aff’d, 145 N. Y. 342; 'Wallace v. Syracuse, etc., R. Co., 27 App. Div. 459, 50 N Y. Supp. 331; Douglas v. Seiferd, 18 Misc. 188, 41 N. Y. Supp. 289; Middlebrook v. Travis, 68 Hun, 155, 22 N. Y. Supp. 672; Aultman & Taylor Co. v. Syme, 163 N. Y. 54; Upson v. Mt. Morris Bank, 103 App. Div. 367, 92 N. Y. Supp. 1101.
6 Pattison v. O'Connor, 23 Hun (N. Y.), 307; Schenck v. McKie, 4 How. Pr. 246.
ix. Y. Gen. Rules 24, 25.
9 N. Y. Code Civ. Pro., § 782. He should give notice of his intention to disregard. First Nat. Bank v. Ranger, 14 N. Y. Civ. Pro. 1; Campbell v. American Zyclonite Co., 53 N. Y. Super. 131.