Rules of Practice. The points on appeals from the Municipal Court shall be printed or typewritten upon white paper of uniform size, viz., ten and one-half inches in length and eight inches in width, and fastened on the left-hand edge thereof. Upon the right-hand corner of the points submitted to the court shall appear the name of counsel arguing or submitting the same. Upon the left-hand corner of the points submitted shall appear the calendar number of the case on appeal. All points, briefs and motion papers must be filed flat. The county clerk's number of the clerk of the county embracing the court from which the appeal is taken must be indorsed on all motion papers.

In appeals from judgments and orders of the City Court ten (10) copies of the points or briefs must be filed, and three (3) copies upon appeals from the Municipal Court must be filed.

Briefs of counsel, when reference therein is made to the testimony given upon the trial, must give the number of the folio in the printed case, if an appeal from the City Court, or the number of the page and the line thereof in the record, if an appeal from the Municipal Court.

If the appellant's brief fails to comply with this rule, the appeal may be dismissed. If the respondent's brief is deficient in this respect, the appeal may be considered on the appellant's brief ak ne. (Adopted July 12, 1915.)

After ubmission or argument of cases and submission of briefs no comunications will be accepted from counsel except to correct rrors or for citation of an authority. (Adopted May 14, 191@

209

RULES OF THE APPELLATE TERM OF THE SUPREME COURT IN THE SECOND JUDICIAL DEPARTMENT.

(Amended Feb. 2, 1916.)

RELATING TO THE HEARING OF APPEALS FROM THE MUNICIPAL COURT AND THE MAKING AND HEARING OF MOTIONS IN SAID APPELLATE TERM.

k RULE I.

Calendar of Appeals.-The clerk of said Appellate Term shall, at least eight days before the first day of an appointed term thereof, prepare a calendar of all the appeals to that court in which the returns, conformable in all respects with section 161 of the New York City Municipal Court Code and with Rule III, have been filed ten days prior to the commencement of such term. Such appeals shall be placed upon said calendar according to the date of the filing of the returns, respectively, shall be brought on for hearing in the manner provided in Rule IV, and shall be continued on said calendar until disposed of.

RULE II.

Motion to Dismiss for Want of Return.-If the appellant fails to procure the return on appeal to be made and filed as prescribed in section 161 of said Municipal Court Code, the respondent may move to dismiss the appeal, and such appeal shall be dismissed unless the justices assigned to hear the same shall, for good reason shown, extend the time. (As amended Feb. 2, 1916.)

RULE III.

Returns, Points, etc.— The stenographer's minutes, attached to the return, and the points on appeal, shall be printed or typewritten upon white paper of the quality and weight prescribed in section 796 of the Code of Civil Procedure, shall be of uniform size, namely, ten and one-half inches in length and eight inches in width; the stenographer's minutes shall be numbered at the bottom of the page, fastened at the left hand edge, bound with suitable cover, and appropriately indexed. Such points shall be fastened on the left hand edge thereof and the number of the appeal shall be indicated thereon, and on the upper right hand corner of the points submitted to the court shall appear the name of the counsel arguing or submitting the same.

All returns on appeal, including the evidence, the exhibits and all papers relating thereto, all points, briefs and all motion papers for submission to the court must be flat and so delivered to the clerk of the Appellate Term; all motion papers for submission to the Appellate Term, or to a justice thereof, must comply with the foregoing conditions as to quality and weight. The exhibits offered by each party shall be copied in typewriting and

annexed to the return in the order of their admission in evidence, and the originals thereof shall also be returned separate, attached in the order in which they are numbered or lettered and placed flat in an appropriate envelope, plainly marked, and enclosed in the return envelope. The opinion of the Municipal Court Justice, if any, must be included in the return.

Returns on appeal from orders must be accompanied by a certificate from the clerk of the Municipal Court that the return contains the pleadings, if any, all affidavits and other papers recited in the order appealed from. (As amended Feb. 2, 1916.)

RULE IV.

Noticing Appeals for Hearing.-After the filing of the return therein an appeal may be brought to a hearing upon notice of either party of not less than eight days, which notice, with proof of service thereof, must be filed with the clerk of the Appellate Term on or before the Monday preceding the first day of the term. If the parties to an appeal shall fail to bring the same to a hearing for at least two terms after the same had been regularly placed on the calendar, the court must dismiss such appeal unless it directs its continuance for good cause shown.

If the appellant does not appear upon the call of the calendar the judgment or order appealed from shall be affirmed. If the appellant appears and the respondent fails to appear, the appellant may either argue or submit his case, but judgment of reversal by default will not be allowed.

RULE V.

Hearing of Appeals; Points and Filing Same. The appellant shall, on or before the Monday preceding the first day of the term at which the appeal is noticed for argument, file with the clerk of the Appellate Term three original copies of his points to be used on the hearing and shall also, on or before the same day, serve a copy of said points on the respondent or his attorney. Upon failure to file and serve said points the appeal may, when called in its regular order on the calendar for argument, be dismissed, or the hearing thereof adjourned to the next term, as the court may determine. Not later than twelve o'clock noon on the Friday preceding the first day of the term, the respondent must serve a copy of his points upon the appellant or his attorney and file with the clerk three original copies thereof, to be used upon such argument and hearing. No further time for filing points will be granted and no other points will be received unless the court shall, by its own motion, direct further points to be submitted.

No appeal will be heard or received on submission unless it has been noticed for argument and proof of service thereof has been filed as provided in Rule IV, and all appeals must be heard or submitted when regularly called for argument, unless the court, for eause shown, shall adjourn the hearing until a subsequent day. No appeal shall be submitted without argument unless the points

have been filed and served as hereinbefore provided, and in the argument of an appeal not more than fifteen minutes shall be occupied by counsel on either side except by permission of the (As amended Feb. 2, 1916.)

court.

RULE VI.

Judgments, Orders and Resettlements. The judgment or order of the Appellate Term shall be entered in the office of the clerk of the county embracing the district of the Municipal Court whence the appeal comes, and the return, with a certified copy of the judgment or order attached thereto, and all papers on which the appeal was heard, shall be remitted to the Municipal Court in the district from which the appeal was taken, as provided in section 163 of the Municipal Court Code. If, however, a motion for reargument or an application for leave to appeal to the Appellate Division is made, the return on such appeal shall be retained by the clerk of the Appellate Term until the motion is decided, and if a new trial has been ordered and the day fixed for such new trial shall intervene the submission and decision of such motion, then the day fixed for such new trial shall be adjourned for three weeks from that day.

Except when the Appellate Term shall otherwise direct, all decisions, either in cases upon appeal or on motion, will, when announced, be accompanied by an order duly signed.

A motion for resettlement of an order must be made within ten days after its entry and upon two days' notice to the adverse party or his attorney.

RULE VII.

Motions Generally.— Five days' notice of motion shall be given of all motions made in the Appellate Term, and all motions noticed for the first day of the term, whether upon an order to show cause or on regular notice of motion, with proof of service thereof, and a note of issue, must be filed with the clerk of the Appellate Term on the Thursday preceding the commencement of the term. The motion calendar will be published on the Saturday preceding the commencement of the term, but no motion will be placed thereon except upon compliance with this rule and Rule III so far as applicable. Briefs of counsel and the answering affidavits, if any, must be filed with the clerk on or before twelve o'clock noon on the Saturday preceding the first day of the term. All motions, including those made under Rule II may be made returnable any day of the term, must be submitted without argument, and when relating to a pending appeal the calendar number of such appeal shall be indicated on the first page thereof, to the right of the title of the action. (As amended Feb. 2, 1916.)

RULE VIII.

Motion for Re-arguments and Applications for Leave to Appeal. Motions for reargument and applications for leave to appeal to the Appellate Division in the Second Judicial Department from a judgment or an order of the Appellate Term, based upon affi

davits setting forth concisely the matters claimed to have been overlooked or misapprehended by the court, a concise statement of the grounds of alleged error, and the reasons why said motion should be granted or such application be allowed, with appropriate reference to the authorities relied upon, may be made and submitted to the justices who heard such appeal, after five days' notice thereof to the adverse party, provided the motion papers be served within ten days after the entry of the order determining said appeal; all papers to be used on such motion, together with a copy of the opinion, if any, and briefs of counsel, shall be deliv ered to the clerk of the court within fifteen days after such determination and thereupon deemed submitted, without argument.

An appeal to the Appellate Division from an order granting a new trial will not be allowed unless the party so applying files with his notice of application for such leave to appeal a stipulation that if the order appealed from be affirmed or the appeal therefrom be dismissed, judgment absolute may be rendered against him.

Motions for leave to appeal to the Appellate Term from an order of the Municipal Court pursuant to the provisions of paragraph VII of section 154 of the Municipal Court Code, may be made to the justices of the Appellate Term or one of them, provided such application has first been made to and denied by the justice of the Municipal Court making the order sought to be reviewed. The motion must be made upon the record in the court below, a copy of the opinion, if any, of the justice making the order, and a concise statement of the ground of the alleged error. The motion may be made after five days' notice thereof to the adverse party, provided the motion papers be served within ten days after the order of the justice of the Municipal Court denying leave to appeal was made. The motion papers shall be delivered to the clerk of the Appellate Term within fifteen days after the making of the order by the justice of the Municipal Court denying leave to appeal, except that after the last Monday of June the same may be delivered to the clerk of the Appellate Term at any time prior to the Monday preceding the beginning of the next succeeding Appellate Term.

A party seeking a stay pending a motion for reargument, or asking leave to appeal to the Appellate Term, or applying for allowance of an appeal to the Appellate Division as hereinbefore provided, must give to the adverse party five days' notice of such application, and the motion papers shall show proof of such

service.

All papers in motions provided for by this rule shall be delivered to the clerk of the Appellate Term and thereupon be deemed submitted, without argument, and the clerk shall bring the same to the attention of the court, or one of the justices thereof, as the provision for such motion may require.

In motions for reargument or for leave to appeal to the Appellate Division an endorsement must be made upon the motion papers, stating the term of the court at which the case was argued or submitted.