21117, Con- 135 N. Y. 76. 13 Hun, 579; 25 Id. 254. 5 Month. L. 31 Hun, 20. 13 Abb. N. Bul. 88. C. 374. 27 Hun, 21. 40. 770. 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. § 771. 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time, or by the written stipulation of the attorneys for the parties, to another judge before whom it might have been originally made. § 772. [Am'd 1877, 1895, amendment to take effect January 1, 1896.] Where an order, in an action, may be made by a judge of the court, out of court, and without notice, and the particular judge is not specially designated by law, it may be made by any judge of the court, in any part of the State; or except to stay proceedings after verdict, report, or decision, by a justice of the supreme court, or by the county judge of the county where the action is triable, or in which the attorney for the applicant resides. 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. § 773. The limitation, contained in the last section, of the county judges, who may make an order, 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. § 774. [Am'd 1877.] 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. § 775 Am'd 1877.] An order to stay proceedings in an 2 Civ. Pro. 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. 14 Misc. 179. 14 Misc. 181. 23 Id. 563. § 776. 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 applicabion, 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 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. court. 777 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 judg ment 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, 778-780 TIME. 151 and subsequent thereto, are fully set forth, in the papers upon which the application is made. §778. A 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. 14 Hun, 1. 10 Daly, 71. 26 Hun, 518. 13 Abb. N. C. 374. 2 Dem. 486. 38 Hun, 289. 6 Dem 299. 38 Hun, 521. 20 Abb. N. C. 292 Rep. 568 512. $779. [Am'd 1877, 1879, 1882, 1884.1 Where costs of a motion, or any other sum of money, directed by an order to be paid, are not paid within the time fixed for that purpose by the order, or if no time is so fixed, within ten days after the service of a copy of the order, an execution against the personal property only of the party required to pay the same, may be issued by any party or person to whom the said costs or sum of money is made payable by said order, or in case permission of the court shall be first obtained by any party or person having an interest in compelling payment thereof, which execution shall be in the same form, as nearly 8. V. State as may be, as an execution upon a judgment, omitting the re- 52,461. citals and directions relating to real property; and all pro- 6 N. Y. Supp. ceedings on the part of the party required to pay the same, 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 cost of a 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. But nothing herein contained shall be so construed as to relieve a party or person from punishment as for contempt of court for disobediance to an order in any case when the remedy of enforcement by such proceedings now exist. 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. 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. 784. When time cannot be ex tended. 2 785. Qualification of last sec- 786. Orders in certain actions; 787. Time for publication of 24 N.Y.State 25; Id. 811; 32 Id. 383; Id. 985. 30 Abb. N.C. 33. 142 N. Y 212 63 State Rep 165 407. 18 App. Div. 780. Am'd 1890.] Where special provision is not other- 1 Civ. Pro. wise made by law, or by the general rules of practice, if notice 17, 464. 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 before the time appointed for the hearing; unless the court or a judge thereof, or a county judge of the county where the action is triable, or in which the attorney for the applicant resides, upon an affidavit show. 25 Hun, 254: 49 Id. 238. 30 Abb. N.C. 406; 138 N.Y. 404n., 405n., 665. 11 Abb. N.C. 233. 11 Abb. N. C. 233 62 How. Pr. 460; 66 Id. 391. 14 Abb. N. Y. 510. 14 N.Y.State Rep. 8. 5 Month. L. Bul. 31 6 Misc. 514. ing 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 sufficient. 781. 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. $782. 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. $783. 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 consequences of an omission to do the act, and allow it to be done; except as otherwise specially prescribed by law. 6N. Y. Supp. 581. $784. A court, or a judge, is not authorized to extend the time, fixed by law, within which to commence an action: or 80 Hun, 257. to take an appeal; or to apply to continue an action where a party thereto has died, or has incurred a disability for 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. $ 785. [Am'd 1877.] Where a party entitled to appeal from a judgment or order, or to move to set aside a final judgment for error in fact, dies either before or after this chapter takes effect, and before the expiration of the time within which the appeal may be taken, or the motion made, the court may allow the appeal to be taken, or the motion to be made, by the heir, devisee, or personal representative of the decedent, at any time within four months after his death. § 786. Where an action is brought for the collective benefit of the creditors of a person, or of an estate, or for the benefit of a person or persons, other than the plaintiff, who will come in and contribute to the expense of the action, notice of a direction of the court, contained in a judgment or order, requiring the creditors, or other person or persons to exhibit their demands, or otherwise to come in, must be published, once in each week, for at least three successive weeks, and as much longer as the court directs, in the newspaper, published at Albany, in which legal notices are required to be published, and in a newspaper, published in the county where the act is required to be done.* 787. The period of publication of a legal notice, in an action or special proceeding, brought in a court, either of record or not of record, or before a „udge of such a court. must be computed, so as to exclude the first day of publica * See L. 1884, c. 133, repealing all acts providing for a State paper. tion, and include the day, on which the act or event, of which notice is given, is to happen, or which completes the full period of publication. $788. [Repealed by Statutory Const uction Law. – 153 N. Y. 56) L. 1892, c. 677.] ARTICLE SECOND. PREFERRED AND DEFERRED CAUSES. 789. Preference of certain actions by the people. 790. Id.; of criminal actions." 791. Id.; among civil actions. 792. Id.; in mandamus or prohibition. 2793. When an order is neces sary. 794. When cause passed, how 789. A trial, a motion, appeal, or hearing, in an action by the people to recover money, funds, credits, or other property, held or owned by the State, or held or owned, officially or otherwise for, or in behalf of, a public or governmental interest, by a municipal or other public corporation, or by a board, officer, custodian, agency or agent of the State, or of a city, county, town, village, or other division, subdivision, department, or portion of the State, which the defendant has, without right, obtained, received, converted, or disposed of ; or to recover damages, or other compensation, for so obtaining, receiving, paying, converting, or disposing of the same; or the aiding or abetting thereof; is entitled, on the application of the Attorney-General, to a preference over any other business, at a term or sitting of any court of the State, irrespective of its place upon the calendar. 790. A criminal action, including an appeal or other proceeding in a criminal cause, is entitled, under the direction of the court, to preference in the trial or hearing thereof, over all civil actions and special proceedings, except as prescribed in the last section. [Am'd 1877, Civil causes 791. Preferences among civil actions. 1879, 1882 1883. 1884, 1887, 1895, 1898, 1899.] are entitled to preference among themselves, in the trial or hearing thereof, in the following order, next after the causes specified in the last section but one: 1. [Am'd 1898, amendment to take effect September 1, 1898. An action or special proceeding brought by or against the people of the state, or by or against any state officer or board of state officers as such; where the attorney of the said people, state, officer or board of state officers has given notice, at the time of service of notice of trial or argument, of a particular day in the term at which he will move it. If the action or special proceeding is not moved by said attorney for trial or argument on that day, or as soon thereafter in the same term as the court can hear it, the other party may then move the trial or argument; otherwise it shall not be moved out of its order at that term except by the special order of the court. 1898. 2. [Am'd 1898, amendment to take effect September 1, An action or special proceeding in which The City of New York, or a board of officers, exercising powers con نانان ferred by a statute for the protection of public health or public or private property, or for the prevention or punishment of violations of a statute relating to either of those subjects, or the commissioners of pilots in The City of New York, are parties; where a notice, similar to the notice prescribed in the last subdivision, has been served by their attorney, at the time of service of the notice of trial or argument. The provisions of the last subdivision, relating to moving the trial or argument, apply to a cause within this subdivision. 3. In the court of appeals or the supreme court, an appeal taken by either party, in an action or special proceeding, other than as specified in subdivision first of this section, where the people of the State, or a board of State officers are sole parties, or a State officer is sole party, plaintiff or defendant. 3a. [Added 1899, to take effect September 1, 1899.] In the court of appeals or the supreme court, an ap] eal taken by either party in an action or special proceeding from a judgment or order declaring a legislative enactment unconstitutional, is entitled on motion of the appellant, to a preference over any business irrespective of its place upon the calendar, except as to preferences provided for in sections seven hundred and eighty-nine, seven hundred and ninety and the preceding subdivisions of this section. 4. In the court of appeals, an action, a party to which has died, pending the action, where the pendency of the action prevents a final settlement of the estate of the deceased party. 150 N.Y. 581. 5. [Am'd 1895, 1899, amendment to take effect September 1, 24 Misc. 406. 1899. In any court, an action or special proceeding in which an executor or an administrator, or testamentary trustee, or an infant or a trustee of a fund for the support and maintenance of an infant, or a receiver appointed by the court, or a general assignee for the benefit of creditors, or the committee of a lunatic or an idiot, or a creditor of a deceased insolvent debtor suing for the benefit of himself and other creditors interested in the estate or property of such deceased debtor where a right of action is given by express provision of law, is the sole plaintiff or sole defendant; an action or special proceeding for the construction of, or an adjudication upon a will, in which the administrator, with the will annexed, or the executor of the will is joined, as plaintiff or defendant, with one or more other parties, and in the court of appeals or the supreme court, an appeal from the decree or decision of a surrogate's court, determining a will to be valid and admitting it to probate, or determining an instrument offered for probate as a will to be invalid or not entitled to probate as such, or granting general letters of administration or directing the distribution of a fun or payment of money by an executor or an administrator in pursuance of on order or decree made on an in rin diate fical or judicial accounting or otherwise by an ada nistrator or an executor. |