Rule 3. Motion papers to be specified in order and filed; effect of failure to file; entry of order.

When any order is entered, all the papers, used or read on the motion on either side, shall be specified in the order, and shall be filed with the clerk, unless already on file or otherwise ordered by the court, or the order may be set aside as irregular, with costs. The clerk shall not enter such order unless the motion papers are filed, and unless the order is signed by the justice presiding at the court at which the motion was heard. When an opinion has been delivered by the court, it shall be filed with the order and shall be considered a part of the record upon which the order was made; and if the order does not state the grounds upon which it was made, the opinion may be considered to ascertain such grounds.

When the affidavits and papers upon a non-enumerated motion are required by law or by the rules of the court to be filed, and the order to be entered in a county other than that in which the motion is made, the clerk shall deliver to the party prevailing in the motion, unless the court shall otherwise direct, a certified copy of the rough minutes, showing what papers were used or read, together with the affidavits and papers used or read upon such motion, with a note of the decision thereon, or the order directed to be entered, properly certified. It shall be the duty of the party to whom such papers are delivered to cause the same to be filed, and the proper order entered in the proper county within ten days thereafter, or the order may be set aside as irregular, with costs. (Amended Apr. 1, 1910, in effect Sept. 1, 1910.)

Rule 4. Undertaking and affidavit în proceedings for injunctions, attachment, order of arrest and writ to be

filed.

Except where otherwise expressly provided by law, it shall be the duty of the attorney of the party required to give a bond or undertaking to forthwith file the same with the proper clerk; and in case such bonds and undertakings shall not be so filed, any party to the action or special proceeding, or other persons interested, shall be at liberty to move the court to vacate the proceedings or order as if no bond or undertaking had been given. It shall also be the duty of the attorney to file the petition or affidavit upon which an injunction, attachment, order of arrest, or writ, has been granted within ten days after the same shall have been served. In case of a failure so to file such petition or affidavit, the opposing party may move to vacate the order, warrant or writ, and the same shall be vacated by the court or judge granting the same, unless for proper cause shown time to file the same shall be extended.

Rule 5. Sureties, justification of bonds to be acknowledged.

Whenever a Justice or other officer approves of the security to be given in any case, or reports upon its sufficiency, it shall be his duty to require personal sureties to justify, or, if the security

offered is by way of mortgage on real estate, to require proof of the value of such real estate. And all bonds and undertakings, and other securities in writing, shall be duly proved or acknowledged in like manner as deeds of real estate, before the same shall be received or filed.

In no case shall an attorney or counselor be surety on any undertaking or bond required by law, or by these rules, or by any order of a court or judge, in any action or proceeding, or be bail in any civil or criminal case, or proceeding.

Rule 6. Sheriff's return, how compelled.

At any time after the day when it is the duty of the sheriff, or other officer, to return, deliver, or file any process or other paper, by the provisions of the Code of Civil Procedure, or by these rules of the courts, any party entitled to have such act done, except where otherwise provided by law, may serve on the officer a notice to return, deliver, or file such process, or other paper as the case may be, within ten days, or show cause, at a Special Term to be designated in said notice, why an attachment should not issue against him.

Rule 7. Books to be kept by clerk of courts.

The clerk of the Appellate Division in each department shall keep:

1. A book, properly indexed, in which shall be entered the title of all actions and proceedings which are pending in that court, and all actions or special proceedings commenced in the Appellate Division with entries under each, showing the proceedings taken therein and the final disposition thereof.

2. A minute book, showing the proceedings of the court from day to day.

3. A remittitur book, containing the final order made upon the decision of each case, a certified copy of which shall be transmitted to the proper clerk as required by the Code of Civil Procedure.

4. A book, properly indexed, in which shall be recorded at large all bonds or undertakings filed in his office, with a statement of the action or special proceeding in which it is given, and a statement of any disposition or order made of or concerning it.

5. A book, properly indexed, which shall contain the name of each attorney admitted to practice, with the date of his admission, and a book, properly indexed, which shall contain the name of each person who has been refused admission or who has been disbarred or otherwise disciplined or censured by the court. The clerk of each department shall transmit to the clerk of the Court of Appeals and to the clerks of the other departments the names of all attorneys who have been admitted to practice, the names of all applicants who have been refused admission, and the names of all attorneys who have been dis

The clerk of each

barred, disciplined or censured by the court. department is directed to enter in the proper book the name of each attorney who has been admitted to practice, with date of his admission, and the name of each person who has been refused admission or has been disciplined, with the date of such refusal of admission or discipline, received from the other departments of the state, together with the date when and department wherein the order was made. (Subd. added Apr. 1, 1910, in effect Sept. 1, 1910.)

The clerks of the other courts shall keep in their respective offices, in addition to the "judgment book" required to be kept by the Code of Civil Procedure:

1. A book, properly indexed, in which shall be entered the title of all civil actions and special proceedings, with proper entries under each denoting the papers filed and the orders made and the steps taken therein, with the dates of the several proceedings. 2. A book in which shall be entered at large each bond and undertaking filed in his office, with a statement showing when filed and a statement of any disposition or order made of or concerning it.

3. Such other books, properly indexed, as may be necessary to enter the minutes of the court, docket judgments, enter orders and all other necessary matters and proceedings, and such other books as the Appellate Division in each department shall direct.

Rule 8. Judgments, entering and docketing of.

Judgments shall only be entered, or docketed, in the offices of the clerks of the courts of this State, within the hours during which, by law, they are required to keep open their respective offices for the transaction of business, and at no other time.

Rule 9. Entry of appearance.

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

Rule 10. Change of attorneys.

An attorney may be changed by consent of the party and his attorney, or upon application of the client upon canse shown and upon such terms as shall be just, by the order of the court or a Judge thereof, and not otherwise.

Rule 11. Agreements between parties or attorneys to be in writing.

No private agreement or consent between the parties or their attorneys, in respect to the proceedings in a cause, shall be binding, unless the same shall have been reduced to the form of an order by consent, and entered, or unless the evidence thereof shall be in writing, subscribed by the party against whom the same shall be alleged, or by his attorney or counsel.

Rule 12. Consents to payment of money out of court.

All consents providing for the payment of money out of court shall be acknowledged before an officer authorized to take the acknowledgment of deeds, accompanied with proof of the identity of the applicant from some person other than the applicant, before any order is granted thereon.

Rule 13. Orders of arrest, injunction or attachment. Every order of arrest, as well as every injunction or attachment, shall briefly state the grounds on which it is granted.

Rule 14. Discovery of books, papers and documents. Applications may be made in the manner provided by law to compel the production and discovery or inspection with copy of books, papers and documents relating to the merits of any civil action pending in court or of any defense of such action, in the following cases:

1. By the plaintiff, to compel the discovery of books, papers or documents in the possession or under the control of the defendant, which may be necessary to enable the plaintiff to frame his complaint or to answer any pleading of the defendant.

2. By the defendant, to compel the like discovery of books, papers or documents in the possession or under the control of the plaintiffs, which may be necessary to enable the defendant to answer any pleading of the plaintiffs.

3. Either party may be compelled to make discovery of any book, document, record, article or property in his possession or under his control, or in the possession of his agent or attorney, upon its appearing to the satisfaction of the court that such book, document, record, article or property is material to the decision of the action or special proceeding, or some motion or application therein, or is competent evidence in the case, or an inspection thereof is necessary to enable a party to prepare for trial.

Rule 15. Form of application for discovery of books. The moving papers upon the application for such discovery or inspection shall state the facts and circumstances on which the same is claimed, and shall be verified by affidavit stating that the books, papers, articles, property, and documents whereof discovery or inspection is sought are not in the possession or under the control of the party applying therefor, but are in the possession or under the control of the party against whom discovery is sought or his agent or attorney. The party applying shall show to the satisfaction of the court or judge the materiality and necessity of the discovery or inspection sought, the particular information which he requires, and in the case of books and papers, that there are entries therein as to the matter of which he seeks a discovery or inspection.

Rule 16. Contents of order; stay of proceedings.

The order for granting the application shall specify the mode in which the discovery or inspection is to be made, which may be either by requiring the party to deliver sworn copies of the matters to be discovered, or to allow an inspection with copy, or by requiring him to produce and deposit the same with the clerk,

The order shall also

unless otherwise directed in the order. specify the time within which the discovery or inspection is to be made, and when papers, articles or property are required to be deposited or inspected, the order shall specify the time the deposit or the opportunity for inspection shall continue.

The court or judge may direct that the order directing the discovery or inspection shall operate as a stay of all other proceedings in the cause, either in whole or in part, until such order shall have been complied with or vacated. (As amended October 24, 1899.)

Rule 17. Application for a subpoena to compel the attendance of a witness to obtain testimony under depositions taken within the State for use without the State, and proceedings thereon.

The petition prescribed by section 915 of the Code of Civil Procedure must state generally the nature of the action or proceeding in which the testimony is sought to be taken, and that the testimony of a witness is material to the issues presented in such action or proceeding, and shall set forth the substance of, or have annexed thereto, a copy of, the commission, order, notice, consent or other authority under which the deposition is taken. In case of an application for a subpoena to compel the production of books or papers, the petition shall specify the particular books or papers the production of which is sought, and show that such books or papers are in the possession of or under the control of the witness and are material upon the issues presented in the action or special proceeding in which the deposition of the witness is sought to be taken. Unless the court or Judge is satisfied that the application is made in good faith to obtain testimony within sections 914 and 915 of the Code of Civil Procedure, he shall deny the application. Where the subpoena directs the production of books or papers, it shall specify the particular books or papers to be produced, and shall specify whether the witness is required to deliver sworn copies of such books or papers to the commissioner, or to produce the original thereof and deposit the same with the commissioner. This subpoena must be served upon the witness at least two days, or in case of a subpoena requiring the production of books or papers, at least five days before the day on which the witness shall be commanded to appear. A party to an action or proceeding in which a deposition is sought to be taken, or a witness subpoenaed to attend and give his deposition may apply to the court to vacate or modify such subpoena.

Upon proof by affidavit that a person to whom a subpoena was issued has failed or refused to obey such subpoena; to be duly sworn or affirmed; to testify or answer a question or questions propounded to him; to produce a book or paper which he has been subpoenaed to produce, or to subscribe to his deposition when correctly taken down, a Justice of the Supreme Court or a County Judge shall grant an order requiring such person to show cause before the Supreme Court, at a time and place specified, why he should not appear; be sworn or affirmed; testify; answer a question or questions propounded; produce a book or paper; or subscribe to his deposition, as the case may be. Such affidavit shall also set forth the nature of the action or special proceeding in