the rule. Jackson v. Smith, 16 Abb. 201; S. C. 25 How. 476; Winnebrenner v. Edgerton, 8 Abb. 419; S. C. 30 Barb. 185; 17 How. 363. Where the irregularity is not specified in the notice or order to show cause, on an appeal from an order denying the relief sought, unless it is otherwise stated in the appeal papers, the appellate court will presume that the motion was denied on the ground of the defect in the notice. Lewis v. Graham, 16 Abb. 126. And see Shipman v. Shafer, 14 Abb. 449.

a. Order to show cause, where | ceedings a mere irregularity, nor is it within made-An order to show cause returnable at special term, must be granted by the special term; and an order to show cause, returnable before a judge out of court, must be made by the judge before whom it is returnable. Hasbrouck v. Ehrich, 7 Abb. 76; Merritt v. Slocum, 6 How. 350; Walsh v. Sun Mutual Insurance Co. 2 Rob. 646; S. C. 17 Abb. 356. A stay of proceedings, to enable a defendant to move for a special jury, should not be granted except at the trial term, or by the justice assigned to hold that part of the trial term upon whose calendar the cause placed. id. But see 1 Van Santv. Eq. Pr. 360, 429.

was

b. Order to show cause, when made. The Code, as a general rule, requires that motions shall not be made without a notice of eight days; and although the court or judge may prescribe a shorter time, or even dispense with notice altogether, the power was intended to be confined to exceptional cases, and not to be exercised indiscriminately on all occasions. Androvette v. Bowne, 15 Ilow. 75; S. C. 4 Abb. 440. An order to show cause cannot properly be made unless the papers upon which the same is founded show a reason for shortening the regular and usual time for notices. Springsteen v. Powers, 4 Rob. 624.

c. Specifying irregularities.-No relief will be granted on a motion or an order to show cause why proceedings should not be set aside for irregularity, unless the irregularity complained of is specified in the notice of motion or order. Graham v. Pinckney, 7 Rob. 147; Lewis v. Graham, 16 Abb. 126; Perkins v. Mead, 22 How. 476; Baxter v. Arnold, 9 id. 445; Bowman v. Sheldon, 5 Sandf. 657; S. C. 10 N. Y. Leg. Obs. 339; Harder v. Harder, 26 Barb. 409; Roche v. Ward, 7 How. 416; Mann v. Brooks, id. 457; Selover v. Forbes, 22 id. 477. But a motion to vacate a judgment by confession founded on the ground that the statement upon which it was entered was not in conformity with § 383 of the Code, is not a mere irregularity, and is not within this rule. Neither is the issuing of an execution in violation of a stay of pro

d. Renewing motion.-Where relief has been denied on the ground that the notice of motion did not specify the defects complained of, yet in proper cases the motion may be renewed on leave and on papers not defective. Macomber v. Mayor, etc. of New York, 17 Abb. 35; Bowman v. Sheldon, 5 Sandf. 657; S. C. 10 N. Y. Leg. Obs. 339.

e. Order of arrest-An order of arrest will not be vacated on the ground of irregularity where the order to show cause why such order should not be vacated does not point out the irregularity. Barker v. Cook, 40 Barb. 256; S. C. 25 How. 190; 16 Abb. 83.

V.

f. Motion, when made. - A motion to set aside a proceeding for irregularity must be made promptly, and before the moving party takes another step in the cause. Strong Strong, 1 Abb. N. S. 242; S. C. 4 Rob. 621; Persse & Brooks' Paper Works v. Willet, 14 Abb. 119; Low v. Graydon, id. 443; Lawrence v. Jones, 15 Abb. 110. But see Bowen v. National Bank of Medina, 34 How. 408; id. 409 (n.)

g. But where the "irregularity" amounts to a jurisdictional defect, the motion to vacate will not be disregarded, even if it does not point out the defect. Blake v. Locy, 6 Ilow. 108; S. C. 1 Code R. N. S. 406. And such motion may be made at any time. Hallet v. Righters, 13 How. 43; Borsdorff v. Dayton, 17 Abb. 36 (n.); Grant v. Van Dercook, 8 Abb. N. S. 455, 465; S. C. 57 Barb. 165. And see Huxford v. Bogardus, 40 How. 94; Simonson v. Blake, 12 Abb. 331; S. C. 20 How. 484; Weeks v. Merritt, 5 Rob. 610.

RULE FORTY-SEVEN.

ENUMERATED AND NON-ENUMERATED MOTIONS-CONTESTED MOTIONS AT CIRCUIT.

Enumerated motions are motions arising on special verdict; issues of law; cases; exceptions; appeals from orders sustaining or overruling demurrers; appeals from a judgment or order granting or refusing a new trial in an inferior court; and appeals by virtue of § 348 of the Code.

Non-enumerated motions include all other questions submitted to the court, and shall be heard at special term, except when otherwise directed by law.

Contested motions shall not be noticed or brought to a hearing at any special term held at the same time and place with a circuit, except in actions upon the calendar for trial at such circuit, and in which the hearing of the

motion is necessary to the disposal of the cause, and except, also, that, in counties in which no special term distinct from a circuit is appointed to be held, motions in actions triable in any such county may be noticed and brought on at the time of holding the circuit and special term in the county in which such actions are triable.

Rule XL of 1858, amended by inserting words in italic.

administrator. Brockway v. Jewett, 16 Barb. 593. Nor an appeal from an order sustaining or overruling a demurrer. Reynolds v. Freeman, 4 Sandf. 702.

What are non-enumerated mo- | is an appeal from an order appointing an tions. A motion for a reference in an action is a non-enumerated motion. Conway v. Hitchins, 9 Barb. 386. But a motion for a new trial is not. Van Schaick v. Winne, 8 How. 8; Ellsworth v. Gooding, id. 1. Neither

RULE FORTY-EIGHT.

FILING NOTES OF ISSUE-GENERAL TERM CALENDAR-DATE OF ISSUE ON APPEAL.

The

Notes of issue for the general term shall be filed eight days before the commencement of the court at which the causes may be noticed. clerk shall prepare a calendar for the general term, and cause the same to be printed for each of the justices holding the court. Appeals shall be placed on the calendar according to the date of the service of the notice of appeal, and other cases as of the time when the question to be reviewed Cases entitled to preference shall be placed on a separate calendar.

arose.

Rule XLI of 1858, amended by adding last clause.

The following additional rule was adopted for the third judicial department, on the 7th day of February, 1871: The attorney for either party to an appeal from an order shall file with the clerk of the county in which the term of the court for which notice of argument of such appeal has been served is to be held, on or before Tuesday of the week preceding the term, a note of issue, in which shall be specified the day of the service of the notice of appeal on the respondent or his attorney. The clerk shall prepare a calendar of the cases in which such notes of issue shall be filed, and shall enter the cases thereon in the order of the time of the service of notice of the appeal. No appeals from orders will be heard unless notes of issue have been duly filed and entered on the calendar.

a. Clerk's fees.-The clerk's fee of one dollar, given by the Code on every trial, was intended to pay him for the ordinary miscellaneous services required of him in the progress of the cause, as well as the services rendered in court on the trial, and include the service of putting the cause on the calendar. But the expense of printing the calendar for the general terms is a county charge. People ex rel. Williams v. Supervisors of Monroe Co. 15 How. 225.

b. Laches. Where an attorney waits, without a sufficient excuse, until the last day but one for filing notices of argument or issue, before sending it to the clerk to file for the calendar, and circumstances then transpire which prevents his sending his notice in season for the calendar, he will not be allowed to put it on, whatever his excuse may be after that time. Wilkin v. Pearce, 4 How. 26.

RULE FORTY-NINE.

ENUMERATED MOTIONS, HOW NOTICED-WHAT PAPERS FURNISHED ON.

Enumerated motions shall be noticed for the first day of the term by either party.

The papers to be furnished on such motions shall be a copy of the pleadings, when the question arises on the pleadings, or any part thereof,

or of such parts only as relate to the question raised by the demurrer; a copy of the special verdict, return, or other papers on which the question arises, and the party whose duty it is to furnish the papers, shall serve a copy on the opposite party, except upon trial of issues of law, at least eight days before the time the matter may be noticed for argument. If the party whose duty it is to furnish the papers shall neglect to do so, the opposite party shall be entitled to move, on affidavit and notice of motion, that the cause be struck from the calendar (whichever party may have noticed it for argument), and that judgment be rendered in his favor: Provided, however, that, in mortgage and partition cases, where the plaintiff's rights are not contested, no copies of pleadings need be furnished to the court.

The papers shall be furnished by the plaintiff, when the question arises on special verdict, and by the party demurring, in cases of demurrer, and in all other cases by the party making the motion. Each party shall prefix to his points a concise statement of the facts of the case, with reference to the folios, and if such statement is not furnished, no discussion of the facts by the party omitting such statement will be permitted.

Rule XLII of 1858, as amended by adding the last sentence.

a. Printing papers is not for the benefit of counsel or parties, but of the court, and is not to be dispensed with except by its order. he court will enforce the rule by considering only such papers as are printed as being before them. Wheeler v. Falconer, 7 Rob. 45; Townsend v. Wheeler, 4 Wend. 196. And see Wells v. Hatch, 6 Cow. 609.

b. Appeal from order of county court-An appeal from an order of the county court, granting a new trial on the judge's minutes, must be brought on as an enumerated motion upon printed papers. Harper v. Allyn, 3 Abb. N. S. 186.

c. Service on demurrer. - Rule 42 (new Rule 49), does not require the party demurring to serve on the opposite party any copy of the pleadings or other papers when

the question to be decided arises on demurrer. The party demurring is required to furnish them to the court, but not to serve them on the opposite party. Gallt v. Finch, 24 How. 193.

d. Striking cause from calendar.When the party who is to furnish the papers has noticed the cause for argument without serving a copy of the papers in due time, the other party may move to strike the cause off the calendar without noticing it himself. But where the cause has been noticed by the party who is to furnish the papers, the other party must show in his affidavit for the motion that he has noticed the cause for argument. Herkimer County Bank v. Devereux, 5 Hill, 9. And see further, as to the practice in such cases, the note and Rule, 10 Wend. 537.

RULE FIFTY.

PAPERS TO BE FURNISHED ON APPEAL.

When an appeal is noticed for a general term, in cases embraced in chapter 3 of title 11 of the Code, and of § 348 of the Code, the appellant shall furnish the papers for the court, which consist of a copy of the judg ment roll, together with a statement showing the time of the commencement of the suit, and of the service of the respective pleadings, the names of the original parties in full, the change of parties if any has taken place pending the suit, to which shall be added the opinion of the court below, or an affidavit that no opinion in writing was given, or if given, that a copy could not be procured. At the commencement of the argument, the appellant shall furnish a printed copy of the papers to each of the judges, together with a printed copy of the points on which he intends to rely, with a reference to the authorities which he intends to cite; and he shall also deliver to the attorney of the adverse party, at least eight days before the first day of the term, three printed copies of the said papers; and each party shall serve upon his adversary a printed copy of his points and

authorities on which he intends to rely. In case the appellant neglects to furnish to the adverse party the said number of copies of the papers, the latter shall be entitled to move, on affidavit and notice of motion, for the earliest practicable day in term for hearing non-enumerated motions, that the cause be stricken from the calendar (whichever party may have noticed it for argument), and that judgment be rendered in his favor.

When a case is agreed upon by the parties according to § 372 of the Code, the plaintiff shall furnish the necessary papers for argument, duly printed, as in cases of appeal. On appeals from non-enumerated motions copies of the papers shall be furnished to the justices.

On an appeal from the order, sentence or decree of a surrogate's court, the party appealing shall file a petition of appeal, addressed to the court, with the clerk of the county in which the order, sentence or decree appealed from was made, within fifteen days after the appeal is entered in the court below, or the appeal shall be considered as waived; and any party interested in the proceedings in the court below may thereupon apply to this court, ex parte, to dismiss the appeal with costs. The petition of appeal shall briefly state the general nature of the proceedings, and of the sentence, order or decree appealed from, and shall specify the part or parts thereof complained of as erroneous; except where the whole sentence, order or decree is alleged to be erroneous, in which case it shall be sufficient to state that the same and every part thereof is erroneous. And where the appeal is from a sentence or decree on the settlement of the accounts of an executor, administrator, or guardian, if the appellant wishes to review the decision as to the allowance or rejection of any particular items of the account, such items shall be specified in the petition of appeal; or the allowance or disallowance of any such items shall not be considered a sufficient ground for reversing or modifying the sentence or decree appealed from. The respondent, in his answer to the petition of appeal in such case, may also specify any items in the account, as to which he supposes the sentence or decree is erroneous as against him and in favor of the appellant. And upon the hearing of the parties upon such appeal, the sentence or decree may be modified as to any such items, in the same manner as if a cross-appeal had been brought by such respondent. The appellant may have an order, of course, that the respondent in the petition of appeal answer the same within twenty days after the service of a copy of a petition of appeal and notice of the order, or that the appellant be heard ex parte. And where the respondent is an adult, upon filing an affidavit of such service upon the attorney of the respondent, if he has

appeared either in this court, or in the court below by an attorney of this court, or upon the surrogate, if he has not appeared by such attorney, and that no answer to the petition of appeal has been received, the appellant may have an order of course that the appeal be heard ex parte as against such respondent. Where the respondent is a minor, if he does not procure a guardian ad litem upon the appeal, to be appointed within twenty days after the filing of the petition of appeal, the appellant may apply to a justice of this court, ex parte, for the appointment of such guardian. And if the minor has appeared by his guardian ad litem in this court, the appellant may have an order of course that the guardian ad litem of the respondent answer the petition of appeal within twenty days after service of a copy thereof and notice of the order, or that an attachment issue against such guardian. When a petition of appeal is filed, if it has not been served on the adverse party, the respondent may have an order of course that the appellant deliver a copy of the petition of appeal to the attorney, or to the guardian ad litem, of the respondent, within ten days after the service of notice of such order, or that the appeal be dismissed; and if the same is not delivered within the time limited by such order, the respondent, upon due notice to the adverse party, may apply at a special term to dismiss the appeal with costs. Upon the hearing of any such appeal as is referred to in this rule, it shall be the duty of the appellant to furnish the court with a copy of the petition of appeal and of the answer thereto, if an answer has been received, and a copy of the proceedings below, including a copy of the appeal as entered.

Former Rule XLIV, of 1858, as amended.

|

appeals from an order of a surrogate appointing an administrator. Brockway v. Jewett, 16 Barb. 590. And upon an appeal from an order or decree of a surrogate, all the parties who are interested in sustaining the order or decree appealed from, should be made parties to the petition of appeal. Gilchrist v. Rea, 9 Paige 66; Suffern v. Lawrence, 4 How. 129; S. C. 2 Code R. 69; Gardner v. Gardner, 5 Paige, 170. Heirs, next of kin and legatees of the deceased, in addition to the executors, are interested in sustaining an order admitting a will to probate, and should be made parties. Gilman v. Gilman, 35 Barb. 591; S. C. 1 Redf. 354, on the merits. The same rule applies to any parties to whom suins are awarded by the surrogate, although they were not parties to the proceedings before him. Willcox v. Smith, 26 Barb. 316. No person will be considered as a party respondent in a petition of appeal who is not named therein, and called upon by the prayer of the petition to answer the same. Gardner v. Gardner, 5 Paige, 170; Brown v. Evans, 34 Barb. 594.

a. Parties to the appeal.-Parties to a proceeding for the probate of a will and codicils before a surrogate, and who will, if the will be established, take nothing by the codicils, and whose interests are unaffected, whether the decision of the surrogate is affirmed or reversed, have nevertheless a right to appeal from that part of the decision of a surrogate admitting the codicils to probate. Parish v. Parish, 42 Barb. 274; S. C. 16 Abb. 397 (n.), sub nom. Matter of Parish Will Case; 1 Redf. 130, sub nom. Delafield v. Parish; S. C. Aff'd, 25 N. Y. (11 Smith), 9. So a party who is a legatee and devisee named in the will, but not a party to the proceedings before the surrogate, may appeal from the decree of a surrogate refusing to admit the will to probate, and without first obtaining leave from the court. Lewis v. Jones, 50 Barb. 645, 673. The gift of a sum of money to an executor, as a compensation for his services, in addition to his commissions as executor, or his appointment as a legatee in trust, or trustee of real estate, for the purposes of the will, is not such a beneficial provision as to be forfeited under the Revised Statutes (2 R. S. 66, § 50), by his appearing and testifying as a witness to prove the will. And the right of appeal given to a legatee or devisee by the 2 R. S. 66, § 55, will remain, notwithstanding the provisions of § 50. Pruyn v. Brinkerhoff, 7 Abb. N. S. 400.

Parties as next of kin, whose interest and rights are the same, should not bring separate 107

b. Appeal, when brought.-Appeals from orders, decrees and sentences of surrogates must be made within thirty days from the making of the order or decree. Williams v. Fitch, 15 Barb. 654. An appeal from a surrogate's decree of distribution cannot be taken after three months from its entry, even though such decree does not make a final distribution of the whole estate. Anthony v. Brouwer, 31 How. 128; S. C. Aff'd, 37 Ñ. Y.