« PreviousContinue »
C. Contents of notice. 90. Entitling. 91. – names of parties. 92. Designating day. 93. Stating where or before whom. 94. Place. 95. Stating on what papers. 96. Specifying irregularity. 97. – effect of omitting to specify
irregularity. 98. Relief sought. 99. Prayer for general relief.
costs. 100. Signature, etc., of mover. 101. Effect of unqualified signature
as a general appearance. 102. Address or direction. 103. Necessity of intervention of at
D. Orders to show cause.
104. Orders to show cause,- used as
process. 105. as short notice of motion. 106. Who may make orders to show
cause; and where returnable. 107. Length of time. 108. Necessity should be sworn to. 109. Restriction on delay. 110. Other requisites. 111. Leral effect of order to show
E. Serving. 112. Conies of papers
on which motion is made. 113. Serving further papers. 114. Mode and time of service.
V.' BRINGING ON THE MOTION,
53. County for motion on notice,
in supreme court actions. 54. - limits of the foregoing statu
tory restriction. 55. Statute controls rules. 56. – power of court to disregard
the statute. 57. Where to move to vacate order
made in wrong place. 58. Apneal as affecting place to
IV. MOTION PAPERS.
A. In general.
59. Two methods of moving.
- statutory power. 62. — what is a motion. 63.
only party can compel. 64. - party not compellable. 65. capacity as witness. 66. preliminary request. 67. — affidavits to support the ap
plication. 68. -- as to place for examina
tion. 69. - notice essential. 7. ordor. 71. service: subpena. 72. — getting rid of the order. 73. counsel. 74. -claim of privilege.
- duty of the referee. 76. -effert of affidavit. 77. Entitling paners. 78. Statina justification for choice
of county to move in. 79. Disclosing ground of motion. 80. Mode of referring to other
na ners. 81. Frruse for delay. 82. Grounds for claiming preference
on the calendar. 83. Onth to merits. 84. Dening or disclosure of previous
B. Noticing motion. 85. Limitations of the time for
moving. 86. Then to bring on motion. 87. Janoth of notice. 88. Day. 89. Consent in lieu of notice.
115. Countermanding notice of mo
tion. 116. Counter-motion. 117. Adjournment of hearing. 118. Consent as to place of hearing. 119. Effort remove motion. 120. Transfer by judge. 121. Adjournment of court to cham.
bers. 122. Notes of issue. 123. Preference. 124. Striking from the calendar. 125. Default of party moved against. 126. Default of moving party.
127. Adjournment for further prepa.
ration, 128. Reservation of objections upon
adjournment. 129. Preliminary objections. 130. — reserving decision. 131. Moving party to be confined to
papers he has served. 132. - to specified grounds. 133. Opposing papers. 134. Counter-affidavits. 135. - impeaching affiant's credi
bility. 136. Additional affidavits on behalf
of moving party. 137. New matter in avoidance. 138. Oral demurrer. 139. Objection that party moving or
opposing is in contempt. 140. Right to open and close. 141. Amending moving papers. 142. Striking out from papers. 143. Marking papers used. 144. Filing the papers.
157. Irregularity not specified.
lief on contested motions.
Power of court. 160. -- principles governing dis
cretion. 161. Power of court on decision of
contested motions to give ap
propriate relief. 162. Amplifying order, beyond no
tice. 163. Amending irregularity to de
feat motion founded on it. 164. Reference or issue. 165. Costs. 166. Limit of time for decision of
motion as to arrest, attach
ment, or injunction. 167. Who must watch for decision.
VII. REHEARING. 168. Rehearing and renewal distin
guished. 169. Rehearing, when allowed. 170. Mode of obtaining rehearing. 171. - how heard.
VI. RULES OF DECISION. 145. Default. 146. Decisions, on what papers. 147. Burden of proof. 148. Tacit admissions. 149. Hearsay evidence. 150. Oral to qualify written. 151. Judge's recollection. 152. Technical irregularities. 153. Prejudging merits of action.
Unconstitutionality of statute. 154. Requiring new action. 155. Another action pending. 156. Former order not res adjudi.
[For List of Forms, see p. 165.] The subject of ORDERS is separately treated at p. 206.
I. GENERAL PRINCIPLES.
1. What is a motion.]-(1.) In its general sense the word “Motion " is used to designate any application to the court or judge; and though a trial is never termed a motion, each application to the court, in the course of the trial, is in this sense a motion: thus the party moves the case for trial, moves to amend, to strike out evidence, to have a nonsuit or direction for a verdict.
(2.) In a stricter sense it is an application to the court other than on a trial of issues of fact; and in this sense it is used in the
definition contained in the Code, describing it as an application for an order; 18 an order being defined as a direction of a court or judge not contained in a judgment. 79
It is in this more restricted sense that it is used in the New York rules of court, in treating of contested motions, and dividing them into what are called respectively "enumerated motions” and
non-enumerated motions." In this sense it includes the argument of demurrers, of appeals, of exceptions reserved to be heard at the Appellate Division, and all other proceedings, the formal conclusion of which is embodied in an order, even though the order be an order for judgment.
(3.) In a still narrower sense the word is used to indicate any summary application, incidental to the cause, as distinguished from trials, arguments of demurrers, appeals, exceptions, etc. In this sense it has been well described as in general relating to some incidental question collateral to the main object of the action. It is in this sense that the word is used in common parlance in the profession. So
2. Enumerated and non-enumerated motions. ]— Motions, as understood in the second of the above meanings, are, in New York practice, classed, with reference to their importance, or their usually involving the merits, as enumerated” and “ merated.”
In January, 1799, the New York Supreme Court made a general rule that certain motions enumerated in the rule — the characteristic of which was that they generally raised substantial questions of law — should be heard according to the priority of time in which the question arose, the dates being furnished by notes, corresponding to our notes of issue, from the attorneys.
All other motions were directed to be heard in the order in which they should be made. Thus, practically, the enumerated inotions were calendar motions, and non-enumerated motions were those which were heard in the order in which attorneys might gain the ear of the court.
T8 N. Y. Code Civ. Pro. $ 768. 79 Id., $ 767.
80 Rensselaer, etc., R. R. Co. v. Davis, 55 N. Y. 145; Matter of Jetter, 78 V. Y. 601; Cohen r. Krulewitch, 81 App. Div. 147, 80 N. Y. Supp. 689; Wallace r. Lewis, 9 Mont. 399, 24 Pac. 22. See distinction between a motion and a petition in Shaft 1. Phænix, etc., Ins. Co. 67 N. Y. 544; between motions and special proceedings, Matter of Lima, etc., Ry. Co. 68 Hun, 252; N. Y. Security & Trust Co, 1. Saratoga Gas, etc., Co. 156 N. Y. 645.
In course of time the convenient practice of regulating the order of business by a calendar has been somewhat extended, and the regulation that non-enumerated motions must be heard in the order in which they are made to the court has been to the same extent superseded.
The list of motions characterized as "enumerated” has also been somewhat modified, chiefly to adapt it to changes in the form of procedure. (See par. 4, post.)
3. Practical difference between them.] -“Enumerated motions” differ from “non-enumerated motions in the following respects:
1. They may be noticed by either party,82 and the party against whom the proceeding is taken, is entitled to proceed in it as an actor, and, if the moving party does not proceed, may take an order in his own favor, and against the moving party.
2. They must be heard within the district or (on an application to the Appellate Division) the department where the cause is pending,84 unless removed under the statute, while non-enumerated motions may often be made elsewhere.
3. If the party whose duty it is on enumerated motions at Special Term to furnish papers five days before argument, neglects to do so, the opposite party is entitled to move on affidavit, and on four days' notice to strike the cause from the calendar and for judgment in his favor. 85
4. A party omitting to prefix to his points, when points are required, a concise statement of the facts with reference to the folios, is not entitled to discuss the facts. 86
81 The order of business in the Court of Appeals also depends on this distinction. Hun's Court Rules, 1904, p. 73, and see Gregory v. Cryder, 9 Abb. Pr. (N. S.) 89.
82 N. Y. Gen. Rules No. 40.
83 Common practice. To the same effect is a dictum in Roosevelt v. Fulton, 5 Cow. (N. Y.) 438.
84 See, for instance, Lord r. Wilkinson, 66 Barb. 607; Christy v. Kiersted, 47 How. Pr. 467.
85 N. Y. Gen. Rules, No. 40. This does not apply to the argument of a demurrer. Id. Whether the papers must be printed does not depend on whether the motion is an enumerated motion, but on whether it is an appellate division calendar cause. N. Y. Gen. Rules, No. 43.
86 N. Y. Gen. Rules, No. 40. The general rules that counsel on each side are allowed only a half hour (fifteen minutes in the first departmentRule III) does not apply to enumerated motions except appeals from orders. The prescribed restriction for other enumerated motions being one hour. N. Y. Gen. Rules, No. 47. Either rule is relaxed in the discretion of the court,
The characteristics of non-enumerated motions will more fully appear in what remains to be said on the subject of motions.
4. What are“ enumerated."]— The following are“ enumerated motions : 87
1. Alternative writs of prohibition, when returnable, or when subsequently brought on by notice.8
2. Appeals from judgments rendered on overruling, or sustaining demurrer,89 or from final judgments upon a trial by a referee, or by the court without a jury, or upon a verdict, or from an inierlocutory judgment. 3. Appeals from an order as to new trial, made on a
motion on the judge's minutes. 91
4. Appeals from final orders and decrees of Surrogates' Courts. 92
5. Appeals to the Supreme Court from a judgment of an inferior court, or an order of such court granting or refusing a new trial.93
6. “ Cases; " i. e., bringing up the appeal on a
87 The old test, that if a motion involved the merits it must be brought on as an enumerated motion (Remsen v. Isaacs, 1 Cai. 22, Col. & C. Cas. 158), is no longer a safe guide.
88 N. Y. Gen. Rules, No. 38, and Code Civ. Pro. & 2099, therein referred to.
89 X. Y. Gen. Rules, No. 38. So held also of appeal from an order overruling or sustaining a demurrer. Reynolds v. Freeman, 4 Sandf. 702.
90 N. Y. Gen. Rules, No. 38, and Code Civ. Pro. $8 1346, 1349, therein referred to.
91 For these appeals (under Code Civ. Pro. $ 999), must be heard on a “ case.” So also though the order was in a county court. Harper v. Allyn, 3 Abb. Pr. (N. S.) 186. And although the appeal is taken only from the order and not from the judgment as well. Kenney v. Sumner, 12 Misc. 86, 33 V. Y, Supp. 95.
92 X, Y. Gen. Rules, No. 38. So held of an appeal from an order appointing an administrator. Brockway v. Jewett, 16 Barb. 590.
By Code Civ. Pro. § 2550, the final determination of the rights of the parties to a special proceeding in a surrogate's court is styled, indifferently, a final order or a decree.”
Intermediate orders, that is, directions entered in writing, but not included in a decree ($2556), are appealable if they affect a substantial right ($ 2570), but an appeal from such an order is not an enumerated motion.
93 N. Y. Gen. Rules, No. 38; Harper v. Allyn, 3 Abb. Pr. N. S. 186.
94 A case” is always brought before the court by an enumerated motion; X. Y. Gen. Rules, No. 38, usually by appeal but not always. Thus the court or a judge thereof may direct a case to be made for the purpose of a motion for a new trial of a reference as to specific questions of fact involved in the issue. N. Y. Code Civ. Pro. & 1004.