RULE IX.

Statement of Facts on the Points-Discussions on Questions of Fact.

In all cases each party shall briefly state upon his printed points, in a separate form, the leading facts which he deems established, with a reference to the folios where the evidence of such facts may be found. And the court will not hear an extended discussion upon any mere question of fact.

RULE X.

Only one Counsel to be heard on each Side. in the argument of calendar causes and motions, only one counsel will be heard on each side, unless the court shall otherwise direct.

RULE XI.

Criminal Cases Preferred on Calendar.

Criminal cases shall have a preference, and may be moved, on behalf of the people, out of their order on the calendar. Appeals and writs of error in criminal cases brought after making up the annual calendar, or too late to be placed upon said calendar, may be put npon the calendar at any time, and brought on for a hearing as preferred causes, upon a notice of fourteen days; and it shall be the duty of the clerk to place such causes on the calendar for the day for which they shall be noticed, or upon which the cause shall be ordered by the court or stipulated by the parties to be heard.

Appeals and writs of error in criminal cases, brought during the current year, may be put on the present calendar under this rule.

RULE XII.

Submitting Case on Printed Arguments. Hereafter cases will not be received upon submission, until reached in the regular call of the calendar.

RULE XIII.

Motions.

Motions will be heard on the morning of the first Tuesday, and on the morning of each following Tuesday during the term, before taking up the calendar.

Where notice has been given of a motion, if no one shall appear to oppose, it will be granted as of course.

If a motion be not made on the day for which it has been noticed, the opposing party will be entitled, on applying to the court at the close of the motions for that day, to a rule denying the motion with costs.

RULE XIV.

Remittitur.

The remittitur shall contain a copy of the judgment of this court and the return made by the Clerk below, and shall be sealed with the seal and signed by the Clerk of this court.

RULE XV.

On Affirmance by Default, Remittitur to be Stayed. When a decree or order shall be affirmed by the default of the appellant, the remittitur shall not be sent to the court below, unless this court shall otherwise direct, until ten days after notice of the affirmance shall have been served on the attorney of the appellant. Service of the notice shall be proved to the Clerk by affidavit or by the written admission of the attorney on whom it was served.

This rule was intended to protect the party against surprise, and to give him time to obtain an order staying the sending down of the remittitur. (1 N. Y. 531.) If he do not do so, and after ten days' notice of the affirmance the remittitur is regularly sent down and filed, this court will not, ordinarily, relieve him (Latson v. Wallace, 9 How. 334); otherwise, if irregularly or improperly sent down. (Chamberlain v.

Fitch, 2 Cow. 243; Palmer v. Lawrence, 5 N. Y. 455; Newton v. Harris, 8 Barb. 306; McFarlan v. Watson, 4 How. 128, as explained in Langley v. Warner, 2 Code R. 97.) The broad doctrine laid down in some of the cases (9 How. 334; 1 N. Y. 239; id. 240; 2 id. 559), that the Court of Appeals loses all jurisdiction over the case by the filling of the remittitur, does not, as we understand it, accord with the present practice of the

court. The mere filing has no special and overpowering effect over the court above. (Judson v. Gray, 17 How. 289; Palmer v. Lawrence, 5 N. Y. 455; Chamberlain v. Fitch, 2 Cow. 243.) The Court of Appeals would by resolution request the court below to return the remittitur, when it would comply with the request. (Vermilyea v. Seldon, 6 How. 41; Bogardus v. Rosendale Co., 1 Duer, 592; Chamberlain v. Fitch, 2 Cow. 243; Newton v. Harris, 8 Barb. 306; Murray v. Blatchford, 2 Wend. 221.)

RULE XVI.

Enlarging Time-Revoking Orders.

The time prescribed by these rules for doing any act may be enlarged by the court or by either of the judges thereof; and either of the judges may make orders to stay proceedings, which, when served with papers and notice of motion, shall stay the proceedings, according to the terms of the order. Any order may be revoked or modified by the judge who made it; or, in case of his absence or inability to act, by either of the other judges.

RULE XVII.

Call of Calendar.

Eight causes only will be called on any day, but, after such call. causes ready on both sides

will be heard in their order. Any cause which is regularly called and passed, without post. ponement by the court for good cause shown at the time of the call, will be placed on all subsequent calendars, as if the return had been filed on the day when it was so passed.

Causes upon the calendar may be exchanged one for another, of course, on filing with the Clerk in court a note of the proposed exchange, with the numbers of the causes, signed by the respective attorneys or counsel. Upon all the subsequent calendars each of said causes will take the place due to the date of the filing of the return in the other.

Any cause, except the first eight upon the caiendar, may be struck therefrom before it is reached, of course, and without prejudice, by the Clerk in court, on consent of the parties who placed the same upon the calendar, at any time during the first week of term.

As to when the court will postpone the argument of a cause, see Bank v. Alvord (32 N. Y. 684), although probably, where, as now, the court is constantly in session, it would not require so strong a case for postponement.

If a party to the appeal die before it is heard, the action must be revived before the cause can be brought to argument. (Shaler, etc., v. Brewster, 32 N. Y. 472.)