Слике страница

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 construed 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. C. 298.


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.
6. Other matters.



SEC. 780. Notice of motion, to be eight days.

781. How time enlarged, before its expiration.
783. Copy of affidavit must be served.
783. Relief, after time has expired.

784. When time cannot be extended.
785. Qualification of last section.

786. Orders in certain actions; how published.
787. Time for publication of notice; how computed.
788. Time for doing any act; how computed.

780. Notice of motion, to be eight days.-Where special provision is not otherwise made by law, or by the general 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 county 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 v. Powers, 4 Rob. 624; Ellis v. Jones, 6 How. 296; Lefferts v. Snediker, 1 Abb. 41; People v. Kenny, 2 Hun, 346; Thompson v. Erie Railway Co., 9 Abb. N. S. 233; Parmenter v. Roth, id. 385; People v. Nichols, 58 How. 200; Anon,, 3 Abb. N. C. 51 (note); Garrett v. Hannier, 1 Law Bull. 42; Blatchford v. Thornal, id. 36; Suydam . Belknap, id. 41; Larkin v. Steele, 25 Hun, 251; People v. Nichols, 79 N. Y. 582.

781. B 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. B. Co., 14 How. 430; Clapp v. Graves, 9 Abb. 20; Doty v. Brown, 3 How. 375; Sheldon . Wood, 14 id. 18.

§ 782. Copy of affidavit must be served. In a case 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.

[ocr errors]

Id. Quinn v. Case, 2 Hilt. 470; Green v. Bullard, 8 How. 315; Graham v. McCoun, 5 id. 353; Barker v. Cook, 16 Abb. 83; s. c. 40 Barb. 254.

§ 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 discretion, and upon such terms as justice requires, relieve the party from the conse 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; Zimm v. 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 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 order, as the case may be, for doing it; except in a case specified in the next section. (2)

(1) See Co. Proc., 405. Whitney v. Townsend, 7 Hun, 233; Smith. Evaus, 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 id. 638. (2) Greene Bates, 7 How. 296; Coon v. Knapp, 13 id. 175.

§ 785. [Amended, 1877.] Qualification of last seo

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 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.


[ocr errors]

§ 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 benefit of a person or persons, other than the plaintiff, who will come in and contribute to the expense of the ac 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 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.

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, on which the act of event, of which notice is given, is to happen, or which completes the full period of publication.

Oo. Proc., 425. Steinle v. Beil, 12 Abb. N. S. 171.

$788. Repealed, 1892, Ch. 677; ante, li.



BRO. 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.

§ 789. Preference of certain actions by the people.— A trial, motion, appeal, or hearing, in an action by the people to recover money, funds, credits, or other property, held or owned by the State, or held or owned, offcially 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 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.

L. 1875, ch. 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, te 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 How. Pr. 193.

*8 791. [Amended, 1877] Id. ; among civil actionsCivil causes are entitled to preference among them. selves, in the trial or hearing thereof, in the following order, next after the causes specified in the last section but one:

1. [Amended, 1879.] 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 attorneygeneral 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.(1)

2. [Amended, 1882.] An action or special proceeding, in which the mayor, aldermen and commonalty of the city of New-York, or a board of officers exercising pow. ers conferred by a statute for the protection of public health, or public or private property, or for the preven tion 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.(2)

3. In the court of appeals or the supreme court, an appeal taken by either party, in an 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 sole party, plaintiff or defendant. (3)

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.(4)

|_ 5. [Amended, 1895.] In any court, an action, or special proceeding, in which an executor or an administrator, or an infant, or a receiver appointed by the court, or a general assignee for the benefit of creditors, or the committee of a

*See Laws 1885, ch. 414, § 7.

« ПретходнаНастави »