an action in the supreme court, must be made within the judicial district in which the action is triable, or in a county adjoining that in which it is triable;(1) except that where it is triable in the first judicial district,* the motion must be made in that district; and a motion upon notice, cannot be made in that district in an action triable elsewhere. (2) But this section does not apply to a case where it is specially prescribed by law that a motion may be made in the county, where the applicant, or other person to be affected thereby, or the attorney, resides. Co. Proc., 401, subd. 4, am'd. Phillips v. Wheeler, 6 T. & C. 306; s. c., 2 Hun, 603; affirmed, 14 Alb. L. J. 426; Mayer v. Apfel, 2 Sw. 729; Rice r. Ehle, 46 How. 153; s. c., 65 Barb. 185. (1) Newcombe v. Reed, 14 How. 100; Blackmar v. Van Inwager, 5 id. 367; Geller v. Hoyt, 7 id. 263; Gould e. Chapin, 4 id. 185; Canal Bank v. Hairis, 1 Abb. 192; Bangs . Sebien, 13 How. 163; id. 374; Chubbuck v. Morrison, 6 id. 367; Askins . Hearns, 3 Abb. 134; Davison v. Powell, 13 How. 257; Hotchkiss v. Crocker, 15 id. 336; Inglehart e. Johnson, 6 id. 80. (2) Harris v. Clark, 10 How. 415; Canal Bank v. Harris, id. 45%; 19 Barb. 587; Wheeler e. Maitland, 12 How. 35; Wells e. Jones, 2 Abb. 20; Sturgess e. Weed, 13 How. 130; Cunningham r. Widing, 5 Abb. 413. 770. Motions in New-York city. In the first judicial district, a motion which elsewhere must be made in court, may be made to a judge out of court, except for a new trial on the merits. Id., subd. 2. Disbrow v. Folger, 5 Abb. 54; Main v. Pope, 16 How. 271; Lowber v. Mayor, 5 Abb. 325. $771. In absence of judge, motion may be transferred to another judge.—Where notice of a motion is given, or an order to show cause is returnable, before a judge, out of court, who, at the time fixed for the motion, is or will be absent, or unable, for any other cause, to hear it, the motion may be transferred, by his order, made before or at that time, or by the written stipulation of the attorneys for the parties, to another judge, before whom it might have been originally made. Id., 404, am'd. Mathis v. Vall, 10 How. 458. - $772. [Amended, 1877.] What judges may make orders out of court without notice. - Where an order, in an action, may be made by a judge of the court,(1) out of court, and without notice, and the particular judge is not specially designated by law, it may be inade by any judge of the court, in any part of the State; or, except to stay proceedings after verdict,(2) The words, "the motion must be made in that district", omitted by error in engrossing. report, or decision, by a justice of the supreme court, or by a judge of a superior city court within the city wherein his court is located, or by the county judge of the county where the action is triable, or in which the attorney for the applicant resides.(3) Where such an order grants a provisional remedy, it can be vacated only in the mode specially prescribed by law; in any other case, it may be vacated or modified, without notice, by the judge who made it, or, upon notice, by him, or by the court.(4) Co. Proc., 401, subd. 3; and id., § 324, consolidated and am'd. (1) Mann . Tyler, 6 How. 236. (2) Otis v. Spencer, 8 id. 171, (3) Kennedy v. Simmons, 4 T. & C. 82; s. c., 1 Hun, 603; Parmenter e. Roth, 9 Abb. N. S. 385; Otis . Spencer, 8 How. 171. (4) Peck v. Yorks, 24 id. 363; 41 Barb. 547; Swift v. Wylie, 5 Rob. 641; Bank of Genesee v. Spencer, 15 How. 14; Culver v. Hollister, 17 Abb. 405; Follett v. Weed, 3 How. 360; Lindsay v. Sherman, 5 id. 308; Blake v. Locy, 6 id. 108. 773. The same. — - The limitation, contained in the last section, of the county judges who may make an or der, does not apply to a case where it is prescribed in this act, in general words, that a particular order may be made by a county judge, or by any county judge. New. § 774. [Amended, 1877.] Review of order made by a judge of another court. 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, as if it was made by a judge of the court, in which the action is pending. Co. Proc.. 403, last clause, am'd. See 327, ante; also, Temporary Act, 15; Conklin 2. Dutcher, 5 How. 386. $775. [Amended, 1877.] When stay of proceedings not to exceed twenty days. An order to stay proceedings in an action, for a longer time than 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 is made upon notice of the application, to the adverse party, or in cases where special provision is otherwise made by law. Id., 401, subd. 6. Mills r. Thursby, 11 How. 114: Sales v. Woodin, 8 id. 350; Chubbuck e. Morrison, 6 id. 367; Anonymous, 5 Sandf 656; Marvin r. Lewis, 12 Abb. 482; Adams v. Sage, 13 How. 18: Salls v. Butler, 27 id. 133; Sisson r. Lawrence, 16 Abb. 259. note; 25 How. 435; Harris r. Clark, 10 id. 416; Hempstead v. Hempstead, id. 81; Wood . Kimball, 9 Abb. 419; 18 How. 163; Clumpha v. Whiting, 10 Abb. 448; Warren v. Wendell, 13 id. 187. 776. Subsequent application for order after denial, etc., of prior application. — 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 same matter, and in the same stage of the proceedings, shall be made only to the same judge, or to the court. If it is made to another judge, out 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. 2 R. S. 281. 27 (2 Edm. 297); and id. 173, § 32, 33, and 34 (2 Edm. 179). Schultzer v. Rodewald, 1 Abb. N. C. 365; Bank v. Moore, 5 Hun, 624; Hall e. Emmons, 2 Sweeney, 396; Gould v. Root, 4 Hill, 554. § 777. Id.; as to application for judgment. Where an application is made to the court for judgment, it cannot be withdrawn, without the express permission of the court; and a subsequent application for judgment shall not be made, at a term held by another judge, except where the first application is so withdrawn; 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 subsequent thereto, are fully set forth, in the papers upon which the application is made. New. Α 778. Penalty for violating last two sections. person making an application, forbidden by the last two sections, with knowledge of the previous application, shall be punished by the court, for a contempt. 2 R. S. 281,28. $779. [Amended, 1879.] Costs of a motion; how collected. Where costs of a motion, directed by an order to be paid, and not paid within the time fixed for that purpose by the order, or, if no time is so fixed, within ten days after service of a copy of the order, all proceedings on the part of the party required to pay them, except to review or vacate the order, are stayed without further direction of the court, until the payment thereof. But the adverse party may at his election waive the stay of proceedings. Where the order directs that the costs of the motion abide the event of the action, or where costs of a motion, awarded by an order, have not been collected, when final judgment is entered, they may be taxed, as part of the costs of the action, or set off against costs awarded to the adverse party, as the case requires. See Co. Proc., as am'd in 1876. Thaule v. Frost, 1 Abb. N. C. 298. TITLE VI. Miscellaneous practice regulations. ARTICLE 1. General regulations respecting time. 2. Preferred and deferred causes. 3. Service of papers. 4. Discovery of books and papers. 5. General regulations respecting bonds and undertakings. ARTICLE FIRST. GENERAL REGULATIONS RESPECTING TIME. SEC. 780. Notice of motion, to be eight days. 781. How time enlarged, before its expiration. 782. Copy of affidavit must be served. 783. Relief, after time has expired. 785. Qualification of last section. 786. Orders in certain actions; how published. 787. Time for publication of notice; how computed. $780. Notice of motion, to be eight days. Where special provision is not otherwise made by law, or by the general rules of practice, if notice of a motion, or of any other proceeding in an action, before a court or a judge, is necessary, it must, if personally served, be served at least eight days(1) before the time appointed for the hearing; unless the court or a judge thereof, upon an affidavit showing grounds therefor, makes an order to show cause, why the application should not be granted; and, in the order, directs that service thereof, less than eight days before it is returnable, be suffi cient.(2) Co. Proc., 23 403 and 413, consolidated and am'd. (1) Rogers v. McElhone, 12 Abb. 292; s. c., 20 How. 441: Main v. Pope, 16 id. 271: Van Benthuysen v. Stevens, 14 id. 70. (2) Androvette v. Bowne, 15 How. 75: 4 Abb. 440; Springsteen v. Powers, 4 Rob. 624; Ellis r. Jones, 6 How. 296; Lefferts . Snediker, 1 Abb. 41; People v. Kenny, 2 Hun, 346; Thompson v. Erie Railway Co., 9 Abb. N. S. 233; Parmenter v. Roth, id. 385. § 781. How time enlarged, before its expiration. —— Where the time, within which a proceeding 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. Co. Proc., part of 405, am'd. Haase v. N. Y. C. R. R. Co., 14 How. 430 Clapp . Graves, 9 Abb. 20; Doty v. Brown, 3 How. 375; Sheldon *. Wood, 14 id. 18. §782. Copy of affidavit must be served. In a case specified in the last two sections, the affidavit, upon which the order was granted, or a copy thereof, must be served with a copy of the order; otherwise, the order may be disregarded. Id. Quinn v. Case, 2 Hilt. 470; Green v. Bullard, 8 How. 315: Graham r. McCoun, 5 id. 353; Barker v. Cook, 16 Abb. 83; s. c. 40 Barb. 254. $783. Relief, after time has expired. After the expiration of the time, within which a pleading must be made, or any other proceeding in an action, after its commencement, must be taken, the court, upon good cause shown, may, in its discretion, and upon such terms as justice requires, relieve the party from the conse quences of an omission to do the act, and allow it to be done; except as otherwise specially prescribed by law. Substitute for part of Co. Proc., 174. Sheldon r. Wood, 14 How. 18; Bortle v. Mellen, 14 Abb. 228; Zimm v. Ritterman, 5 Rob. 618. § 784. When time cannot be extended. A court, or a judge, is not authorized to extend the time, fixed by law, within which to commence an action; or to take an appeal;(1) or to apply to continue an action, where a party thereto has died, or has incurred a disability; or the time fixed by the court, within which a supplemental complaint must be made, in order to continue an action; or an action is to abate, unless it is continued by the proper parties. A court, or a judge, cannot allow either of those acts to be done, after the expiration of the time fixed by law, or by the order, as the case may be, for doing it; except in a case specified in the next section. (2) (1) See Co. Proc., 405. Whitney v. Townsend, 7 Hun, 233; Smith v. Evans, 1 Abb. N. C. 396; Thurber v. Chambers, 60 N. Y. 29; Bryant v. Bryant, 4 Abb. N. 8. 138; Humphrey v. Chamberlain, 1 Kern. 274; Wait . Van Allen, 22 N. Y. 319; Salles v. Butler, 27 id. 638. (2) Greene v Bates, 7 How, 296; Coon v. Knapp, 13 id. 175. § 785. [Amended, 1877.] Qualification of last sec |
