which the testimony is sought to be taken, and a copy of the pleadings or other papers defining the issues in such action or special proceeding, or the facts to be proved therein. Upon the return of such order to show cause, the Supreme Court shall upon such affidavit and upon the original petition, and upon such other facts as shall appear, determine whether such person should be required to appear; be sworn or affirmed; testify; answer the question or questions propounded; produce the book or paper, or subscribe to his deposition, as the case may be, and may prescribe such terms and conditions as shall seem proper. Upon proof of a failure or refusal on the part of any person to comply with any order of the court made upon such determination, the court or judge shall make an order requiring such a person to show cause before it or him at a time and place therein specified, why such person should not be punished for the offense as for a contempt. Upon the return of the order to show cause the questions which arise must be determined as upon a motion. If such failure or refusal is established to the satisfaction of the court or judge before whom the order to show cause is made returnable, the court or judge shall enforce the order and prescribe the punishment as in the case of a recalcitrant witness in the Supreme Court. (As amended October 24, 1899.)

Rule 18. Proof of service of summons by persons other than sheriff; in divorce cases.

Where personal service of the summons and of the complaint, or notice, if any accompany the same, shall be made by any other person than the sheriff, it shall be necessary for such person to state in his affidavit of service his age, or that he is more than twenty-one years of age; when and at what particular place, and in what manner he served the same; and that he knew the person served to be the person mentioned and described in the summons as defendant therein, and also to state in his affidavit that he left with defendant such copy, as well as delivered it to him. No such service shall be made by any person who is less than eighteen years of age.

In actions for divorce, or to annul a marriage, or for separate maintenance, the affidavit, in addition to the above requirements, shall state what knowledge the affiant had of the person served being the defendant and proper person to be served, and how he acquired such knowledge. The court may require the afflant to appear in court and be examined in respect thereto, and when service has been made by the sheriff, the court must require the officer who made the service to appear and be examined in like manner, unless there shall be presented with the certificate of service the affidavit of such officer, that he knew the person served to be the same person named as defendant in the summons, and shall also state the source of his knowledge.

Rule 19. Pleadings, to be folioed.

Every pleading, deposition, affidavit, case, bill, exceptions, report, paper, order or judgment exceeding two folios in length, shall be distinctly numbered and marked at each folio in the margin thereof, and all copies either for the parties or the court shall be numbered or marked in the margin, so as to conform to the original draft or entry and to each other, and shall be in

dorsed with the title of the cause. All the pleadings and other proceedings and copies thereof shall be fairly and legibly written or printed, and if not so written or printed and folioed and indorsed as aforesaid, the clerk shall not file the same, nor will the court hear any motion or application founded thereon.

All pleadings and other papers in an action or special proceeding served on a party or an attorney, or filed with the clerk of the court, must comply with section 796 of the Code of Civil Pro-cedure and must be written or printed in black characters; and no clerk of the court shall file or enter the same in his office unless it complies with this rule. The party upon whom the paper is served shall be deemed to have waived the objection for noncompliance with this rule unless within twenty-four hours after the receipt thereof he returns such papers to the party serving the same with a statement of the particular objection to its receipt; but this waiver shall not apply to papers required to be filed or delivered to the court.

It shall be the duty of the attorney by whom the copy pleadings shall be furnished for the use of a court on trial, to plainly designate on each pleading the part or parts thereof claimed to be admitted or controverted by the succeeding pleadings. (As amended October 24, 1899.)

*

Rule 20. Service and settlement of interrogatories.

Interrogatories to be annexed to a commission issued under artlele second of title three, chapter nine, of the Code of Civil Procedure shall be served within ten days after the entry of the order, allowing the commission. Cross-interrogatories shall be served within ten days after the service of the interrogatories, unless a different time is fixed therefor by the order allowing the commission. In case a party shall fail to serve such cross-interrogatories within the time limited therefor, he shall be deemed to have waived his right to propound cross-interrogatories to the witness to be examined under the commission. Either party may, within two days after the service of the cross-interrogatories or within two days after the time to serve cross-interrogatories has expired, serve upon the opposing party a notice of settlement of the interrogatories and cross-interrogatories before a Justice of the court or County Judge. The time at which such interrogatories or cross-interrogatories shall be noticed for settlement shall be not less than two nor more than ten days after the service of the notice. If neither party serves such a notice within the time limited therefor, the interrogatories and cross-interrogatories are to be deemed settled as served and shall be so allowed without notice. (As amended October 24, 1899.)

Rule 21.

Non-enumerated motions; noticing of. Non-enumerated motions, in the Supreme Court, except in the first and second districts, and motions noticed to be heard in Erie eounty, shall be noticed for the first day of the term or sitting of the court, accompanied with copies of the affidavits and papers on which the same shall be made, and the notice shall not be for a later day, unless sufficient cause be shown (and contained in the affidavits served), for not giving notice for the first day. In other courts such motions may be made on any day designed by the Judges thereof. In the Appellate Division such motions may be noticed for any motion day in the term.

Rule 22. Motions to strike out irrelevant matter; notice of.

Motions to strike out of any pleading matter alleged to be irrelevant, redundant or scandalous, and motions to correct a pleading on the ground of its being "so indefinite or uncertain that the precise meaning or application is not apparent," must be noticed before demurring or answering the pleading and within twenty days from the service thereof. The time to make such motion shall not be extended unless notice of an application for such extension, stating the time and place thereof, of days shall be given to the adverse party.

Rule 23. Afdavits of merits.

least two

All motions for relief to which a party is not entitled as matter of right shall be made upon papers showing merits, and the good faith of the prosecution or defense, which may be shown by any proof that shall satisfy the court. (Amended Apr. 1, 1910, in effect Sept. 1, 1910.)

Rule 24.

Affidavit for order extending time.

No order extending a defendant's time to answer or demur, or the plaintiff's time to reply to a counterclaim, shall be granted, unless the party applying for such order presents to the judge to whom the application is made an affidavit of the attorney or counsel retained to defend the action that from the statement of the case made to him by the defendant he verily believes that the defendant has a good and substantial defense upon the merits to the cause of action set forth in the complaint, or to some part thereof, or an affidavit of the attorney or counsel for the plaintiff, that from the statement of the case made to him by the plaintiff he verily believes that the plaintiff has a good and substantial defense upon the merits to the cause of action set forth as a counterclaim, or to some part thereof, as the case may be. The affidavit shall also state the cause of action and the relief demanded in the complaint and, where a counterclaim has been interposed, the cause of action alleged as a counterclaim and the relief demanded in the answer; and whether any and what extension or extensions of time to answer, demur or reply by stipulation or order have been granted.

When the time to serve any pleading has been extended by stipulation or order for twenty days, no further time shall be granted by order, except upon two days' notice to the adverse party of the application for such order. (Amended Apr. 1, 1910, in effect Sept. 1, 1910.)

Rule 25. Ex parte application to contain statement as to previous application.

Whenever application is made ex parte on affidavit to a Judge or court for an order, the affidavit shall state whether any previous application has been made for such order, and, if made, to what court or Judge, and what order or decision was made thereon, and what new facts, if any, are claimed to be shown. For failure to comply with this rule, any order made on such application may be revoked or set aside. This rule shall apply to proceedings supplementary to execution, and to every application

for an order or judgment made in any action or special proceeding.

Rule 26.

Application for judgment on failure to answer. When the plaintiff in an action in the Supreme Court is entitled to judgment upon the failure of the defendant to answer the complaint, and the relief demanded requires application to be made to the court, such application may be made at any Special Term in the district embracing the county in which the action is triable, or, except in the first district, in an adjoining county; such application, except in the first judicial district, may also be made at a Trial Term in the county in which the action is triable. When a reference or writ of inquiry shall be ordered the same shall be executed in the county in which the action is triable, unless the court shall otherwise order. In the first judicial district, every motion or application for an order or judgment where notice is necessary, must be made to the Special Term for the hearing of motions, and where notice is not necessary, to the Special Term for the transaction of ex parte business, except where other provision is expressly made by law, or the general or special rules of practice. In the county of Kings all such applications shall be made at the Special Term for the hearing of motions. Any order or judgment granted in violation of this provision shall be vacated by the Special Term, at which the application should have been made, or by the Appellate Division of the Supreme Court; and no order or judgment granted in violation of this rule shall be entered by the clerk.

Rule 27. Orders granted on petitions, contents may be docketed.

Orders granted on petitions, or relating thereto, shall refer to such petitions by the names and descriptions of the petitioners and the date of the petitions, if the same be dated, without reciting or setting forth the tenor or substance thereof unnecessarily. Any order or judgment directing the payment of money, or affecting the title to property, if founded on petition, where no complaint is filed, may, at the request of any party interested, be enrolled and docketed, as other judgments.

Rule 28. Inquests, when taken.

(Repealed Apr. 1, 1910, in effect Sept. 1, 1910.)

Rule 29. Opening of counsel; examination of witnesses and summing up.

In the trial of civil causes, unless the justice presiding or the referee shall otherwise direct, each party shall open his case before any evidence is introduced, and, except by special permission of the court, no other opening by either party shall thereafter be permitted.

On the trial of issues of fact, one counsel only on each side shall examine or cross-examine a witness, who shall not repeat the answer or answers of such witness at the time he shall be under examination. One counsel only on each side shall sum up the cause, and he shall not occupy more than one hour, and the testimony, if taken down in writing, shall be written by some person other than the examining counsel; but the judge who holds

the court may otherwise order, or dispense with this require

ment.

While addressing the court, examining witnesses or summing up, counsel shall stand., (Amended Apr. 1, 1910, in effect Sept. 1, 1910.)

Rule 30. Non-suit before referee; referee's report; testimony in references other than for trial of issues; exceptions, when filled.

On a hearing before a referee or referees, the plaintiff may submit to a non-suit or dismissal of his complaint, or may be non-suited, or his complaint may be dismissed, in like manner as upon a trial, at any time before the cause has been finally submitted to a referee or the referees for their decision; in which case the referee or referees shall report according to the fact, and judgment may thereupon be perfected by the defendant. In references other than for the trial of the issues in an action, or for computing the amount due in foreclosure cases, the testimony of the witnesses shall be signed by them; the report of the referee shall be filed with the testimony, and a note of the day of the filing shall be entered by the clerk in the proper book, under the title of the cause or proceeding. At any time after the report is filed either party may bring on the action or proceeding at Special Term on notice to the parties interested therein, (Amended Apr, 1, 1910, in effect Sept. 1, 1910.)

Rule 31. Motion for new trial, where made; case or exceptions, when necessary.

When an order grants or refuses a new trial, except on the exceptions taken during the trial, it shall specify, the grounds apon which the motion was made and the ground or grounds upon which it was granted. In all actions where either party is entitled to have an issue or issues of fact settled for trial by a jury, either as a matter of right or by leave of the court if either party desires such a trial, the party must within twenty days after issue joined, give notice of motion that all the issues or one or more specific issues be so tried. If such motion is not made within such time, the right to a trial by jury is waived. With the notice of motion shall be served a copy of the questions of fact proposed to be submitted to the jury for trial, in proper form to be incorporated in the order; and the court or judge may settle the issues, or may refer it to a referee. to settle them. Such issues must be settled in the form prescribed in sections 823 and 970 of the Code of Civil Procedure.

When any specific question of fact involved in an action or any question of fact not put in issue, is ordered to be tried by a jury, as a substitute for a feigned issue, and has been tried, or a reference other than of the whole issue has been ordered under the Code, and a trial had, if either party shall desire to apply for a new trial, on the ground of any error of the judge or referee, or on the ground that the verdict or report is against evidence (except when the judge directs such motion to be made upon his minutes at the same term of the court at which the issues are tried), a case or exceptions shall be made, or a case containing exceptions, as may be required; which case or exceptions must be served and settled in the manner prescribed by the rules of court for the settlement of cases