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etc., of prior application. - 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 application, in refei. ence to the same matter, and in the same stage of the proceedings, sball be made only to the same judge, or to the court. 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.
2 R. 8. 281, 27 (2 Edm. 297): and id. 173,3 32, 33, and 34 (2 Edm. 179). Schultzer v. Rodewald, I Abb. N. C. 363; Bank o. Moore, 5 Hun, 624; Hall v. Emmons, 2 Sweeney, 396; Gould v. Root, 4 IIill, 554.
8777. Id.; as to application for judgment. - Where an application is made to the court for judgment, it cannot be withdrawn, without the express permission of the court ; and a subsequent application for judgment shall not be made, at a term held by another judge, except where the first application is so withdrawn; or where the directions, given thereupon, require an act to be done, before judgment can be rendered; or where the fact of the former application is stated,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 pro ceedings thereupon, and subsequent thereto, are fully set forth, in the papers upon which the application in made. Now.
8778. Penalty for violating last two sections. - 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. 2 R. 8. 281, 28.
$ 779. (Amended 1879, 1882 and 1884.] Costs of motion ; how collected. - 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 inade paye able 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 as may be, as an execution upon a judgment, omitiing the recitals and directions relating to real property; and all proceedings 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 costs of a notion
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 con. strued as to relieve a party or person from punishment as for contempt of court for disobedience to an order in any case when the remedy of enforcement by such proceedings now exist. See Code of Proc., as am'd in 1876. Thaule v. Frost, 1 Abb. N, O. 298.
Miscellaneous practice regulations.
2. Preferred and deferred causes.
GENERAL REGULATIONS RESPECTING TIME.
781, How time enlarged, before its expiratione
$ 780. Notice of motion, to be eight days.- Where special provision is not otherwise made by law, or by the gen. eral rules of practice, if notice 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 couuty where the action is triable or in which the attorney for the applicant resides, upon an affidavit showing 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.
See Laws 1890, chap. 219. (1) Rogers v. McElhone, 12 Abb. 292; 8. C., 20 How.441; Main v. Pope, 16 id. 271; Van Benthuysen v. Stevens, 14 id. 70. (2) Androvette v. Bowne, 15 How. 75; 4 Abb. 440; Springsteen 1. Powers, 4 Rob. 621; Ellis v. Jones, 6 How. 296; Lefferts v. Snediker, i Abb. 41; People v. Kenny, 2 Hun, 316; Thompson v. Erie Railway Co., 9 Abb. N. S. 233; Parmenter v. Roth, id. 383; People v. Nichols, 58 How, 200; Anon., 3 Abb. N. C. 51 (note); Garrett r. Hannier, 1 Law Bull. 42; Blatchford v. Thornal, id. 36; Suydam 1. Belknap, id. 41; Larkin v. Steele, 25 Iun, 251; People v. Nichols, 79 N. Y. 582.
8781. E time enlarged, before its expiration. 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.
Co. Proc., part of 405, am'd. Haase v. N. Y, O. R. R. Co., 14 How. 130; Clapp v. Graves, 9 Abb. 20; Doty o. Brown, 3 How. 375; Sheldon 0. Wood, 14 id. 18. $782. Oopy of affidavit must be served.
In & CA. 80 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.
Id. Quinn o. Case, 2 Hilt. 470; Green o. Bullard, 8 How. 318; Ort ham 0. McCoun, 5 id. 353; Barker v. Cook, 16 Abb. 83; 8. C. 40 Barb.
$783. Relief, after time has expired. - 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 conga quences of an omission to do the act, and allow it to be done ; except as otherwise specially prescribed by law.
Substitute for part of Co. Proc., & 174. Sheldon v. Wood, 14 How. 18; Bortle v. Mellen, 14 Abb. 228; Zimmv. Ritterman, 5 Rob. 618. $ 784. When time cannot be extended.
A court, or a judge, is not authorized to extend the time, fixed by law, within which to commence an action ; or to take an appeal ;(1) or to apply to continue an action, where & party there:o has died, or has incurred a disability; or the time fixed by the court, within which a supplemental coinplaint 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 Ye next section.(3) (1) See Co. Proc., 405. Whitney v, Townsend, 7 Hun, 233 ; Smith, Evans, 1 Abb. N. C. 396; Thurber v. Chambers, 60 N. Y. 29; Bryant s. Bryant, 4 Abb. N. 8. 138; Humphrey v. Chamberlain, 1 Kern. 274; Walt . Van Allen, 22 N. Y. 319; Salles v. Butler, 27 d. 638. (2) Greene Bates, 7 How. 296; Coon o. Knapp, 13 Id. 175.
$ 786. (Amended, 1877.] Qualification of laat no
tion. — Where a party entitled to appeal from a judg. ment 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 timo within which the appeal may be taken, or the motion made, the court may allow the appeal to be taken, of the motion to be made, by the heir, devisee, or personal representative of the decedent, at any time within four months after his death.
New. $ 786. Orders in certain actions; how published Where an action is brought for the collective benefit of the creditors of a person, or of an estate, or for the bene. fit of a person or persons, other than the plaintiff, who will come in and contribute to the expense of the &c. tion, notice of a direction of the court, contained in a judgment or order, requiring the creditors, or other per son or persons to exhibit their demands, or otherwise to come in, must be publislied, 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 & newspaper, published in the county where the act is required to be done. 2 R. S. 183, & 106 (2 Edm. 190).
$787. Time for publication of notice; how compu. ted. — 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 judge of such a ourt, must be computed, so as to exclude the first day of publication, and include the day, ou which the act 01 event, of which notice is given, is to happen, or which completes the full period of publication. Do. Proc., 423. Steinle v. Bell, 12 Abb. N. S. 171.
$ 788. Repealed, 1892, Ch. 677; ante, ll.
PREFERRED AND DEFERRED CAUBKS.
SEO. 789. Preference of certain actions by the people.
790. Id.; of criminal actions.
793. When an order is necessary. $789. Preference of certain actions by the people A trial, motion, appeal, or hearing, in an action by tho people to recover money, funds, credits, or other propre erty, held or owned by the State, or held or owned, ofit. cially or otherwise, for, or in behalf of, a public or gov. ernmental 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 dam. ages, 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. L 1875, chi 49, 5,
$790. Id.; of criminal actions. - 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,
* See 28 Barb, 284; 24 Horo. Pr. 193.