What make or ders out of court without notice. TITLE 5. § 772. Where an order, in an action, may be made by a judge of the judges may 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 a judge of a superior city court within the city wherein his court is located, 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. The same. Review of order made another When stay § 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. An order, made by a judge of a court, other than the court in by judge of which the action is pending, may be reviewed in the same manner, as court. if it was made by a judge of the court, in which the action is pending. § 775. An order to stay proceedings in an action, for a longer time than of proceed 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. exceed twenty days. Subse quent application for order after de plication. § 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 application, in reference to the same nial, etc., matter, and in the same stage of the proceedings, shall be made only oferta 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. § 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 Where an application is made to the court for judgment, it cannot be withdrawn, without the express permission of the court; and a subsequent application for judgment shall not be made, at a term held by another judge, except where the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 proceedings thereupon, and subsequent thereto, are fully set forth, in the papers upon which the application is made. Id.; as to application for judg. ment. Penalty for violating last two sections. § 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. § 779. Where costs of a motion, 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 service of a copy of the order, all proceedings on the part of the party required to pay them, except to review or vacate the order, are stayed, without further direc tion 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 the 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. 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. TITLE 6. ARTICLE FIRST. GENERAL REGULATIONS RESPECTING TIME. SECTION 780. Notice of motion, to be eight days. 785. Qualification of last section. 786. Orders in certain actions; how published. 787. Time for publication of notice; how computed. be eight § 780. Where special provision is not otherwise made by law, or by Notice of the general rules of practice, if notice of a motion, or of any other motion, to proceeding in an action, before a court or a judge, is necessary, it must, days. if personally served, be served at least eight days before the time appointed for the hearing; unless the court or a judge thereof, 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. before its § 781. Where the time, within which a proceeding in an action after How time its commencement, must be taken, has begun to run, and has not ex- enlarged, pired, it may be enlarged, upon an affidavit showing grounds therefor, expiration. by the court, or by a judge authorized to make an order in the action. affidavit must be served. $782. In a case specified in the last two sections, the affidavit, upon Copy of 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 Relief after 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. time has expired. cannot be § 784. A court, or a judge, is not authorized to extend the time, When timo fixed by law, within which to commence an action; or to take an extended. appeal; or to apply to continue an action, where a party thereto has died, or has incurred a disability; or 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 TITLE 6. Qualification of last section. Orders in certain ac order, as the case may be, for doing it; except in a case specified in the next section. § 785. Where a party, entitled to appeal from a judgment or order, or to move or 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 tions; how creditors of a person, or of an estate, or for the benefit of a person or published. 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. Time for publication how com § 787. The period of publication of a legal notice, in an action or of notice; special proceeding, brought in a court, either of record or not of record, puted. or before a judge of such a court, must be computed, so as to exclude the first day of publication, 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. Time for doing any § 788. The time within which an act, in an action or special proceedact; how ing, brought, as specified in the last section, is required by law to be computed. done, must be computed, by excluding the first, and including the last day; except where it is otherwise specially prescribed by law. If the last day is Sunday, or a public holiday, it must be excluded. Where the act is required to be done within two days, and an intervening day is Sunday, or a public holiday, it must also be excluded. of certain ARTICLE SECOND. PREFERRED AND DEFERRED CAUSES. SECTION 789. Preference of certain actions by the people. 790. Id.; of criminal actions. 791. Id.; among civil actions. 792. Id.; in mandamus or prohibition. 793. When an order is necessary. 794. When cause passed, how placed upon the calendar. 795. Note of issue to state time when passed. Preference § 789. A trial, motion, appeal, or hearing, in an action by the peoactions by ple to recover money, funds, credits, or other property, held or owned the people. 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. ART. 2. criminal § 790. A criminal action, including an appeal or other proceeding Id.; of in a criminal cause, is entitled, under the direction of the court, to actions. preference in the trial or hearing thereof, over all civil actions and special proceedings, except as prescribed in the last section. civil ac § 791. Civil causes are entitled to preference among themselves, in Id.; among the trial or hearing thereof, in the following order, next after the causes tions specified in the last section but one: 1. 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, and in which the people, or such officer or board, appear by the Attorney-General; where the Attorney-General has given notice, at the time of service of notice of trial or argument, of a particular day in the term on which he will move it. If the action or special proceeding is not moved by him 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. 2. An action or special proceeding, in which a board of officers exercising powers conferred 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 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 a sole party, plaintiff or defendant. 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. 5. In any court, an action, in which an executor or administrator is the sole plaintiff or sole defendant; an action 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; an action in which a receiver of a savings bank is sole plaintiff or sole defendant; 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 granting general letters of administration. 6. An action for dower; where the plaintiff makes proof, by affida-vit, to the satisfaction of the court, or a judge thereof, that she has no sufficient means of support, aside from the estate in controversy. TITLE 6. Id.; in or prohibition. 7. An action against a corporation or joint-stock association, issuing bank notes, or any kind of paper credits, to circulate as money; or by or against a receiver of such a corporation or association. 8. An action against a corporation founded upon a note,or anothers* evidence of debt for the absolute payment of money. An action upon an undertaking given upon an appeal to the court of appeals, or to stay the execution on an appeal to the court of appeals. 9 An action against a sheriff, in his official capacity. 10. A cause entitled to preference, by the general rules of practice, or by the special order of the court in the particular case. Where an issue of law and an issue of fact, or two or more other questions of different natures, come before the same term of the court for trial or hearing the preference given by this section affects only the order, in which the issues or questions of the same nature are to be disposed of. 792. Where a writ of mandamus or of prohibition has been issued, mandamus from the general term, to a special term, or a judge of the same court, the cause may, in the discretion of the court, or, where an appeal is taken therein to the court of appeals, in the discretion of that court, be preferred over any of the causes specified in the last section. When an order is necessary. When cause passed, how placed upon the calendar. Note of is time when passed. § 793. Where the right to a preference depends upon facts, which do not appear in the pleadings or other papers upon which the cause is to be tried or heard, the party desiring a preference must procure an order therefor, from the court, or a judge thereof, upon notice to the adverse party. A copy of the order must be served, with or before the notice of trial or argument. Such an order is not appealable; but it may be vacated by the judge or judges holding the term, at which the preferred cause is noticed for trial or hearing. But a preliminary order is not requisite, in a case embraced within subdivision first or second of the last section but one; and the order, in a case embraced within subdivision sixth thereof, may be made ex parte, and is conclusive. §794. Where an action or special proceeding, placed upon the calendar of a term of a court of record, held in the city and county of New York, is regularly called and passed, without a postponement by the court, for good cause shown, it must thenceforth be placed on the same or a future calendar, as if the date of the issue was the time when it was thus passed. § 795. In a case specified in the last section, the party placing the te to state cause upon the calendar, for a subsequent term, must state, in the note of issue, the date of the issue, as prescribed in that section. If he omits to do so, by reason whereof the cause retains its priority on the calendar, the court, on the application of the adverse party, or of its own motion, may strike the cause from the calendar. ARTICLE THIRD. SERVICE OF PAPERS. SECTION 796. Paper may be served personally. 797. Other modes of service. 798. Double time when served through the post-office. 799. When paper to be served on attorney; when service not required. 800. When service may be made on clerk, for non-resident. 801. Service through branch post-office in New York city. *So in the original. |