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the service of such notice, a copy of the moving papers and a statement in such affidavit setting forth the reasons why a stay should be granted, an application for a stay will be entertained Application for such order must be made to the justices of the Appellate Term who heard the appeal, or one of them, by filing the same with the clerk of the Appellate Term, by whom it will be brought to the attention of the court.
The motion may be, and usually is, in the alternative either for re-argument or leave to appeal.
When a re-argument of an appeal from an order or judgment of the City Court is granted, the clerk of the Appellate Term places the case upon the calendar of the next term after the filing of the order. No new notice of argument need be served or filed. The case will be called in the regular order, must be submitted without oral argument and will be referred by the justices sitting in that term to the justices who heard the appeal in the first instance, unless it is a case where a re-argument is ordered to be heard de novo, in which event, it will be heard by the justices then sitting as though it was on the calendar for the first time. Copies of the briefs used upon the original hearing may be handed up at the call of the calendar or filed with the clerk prior thereto. They need not be re-served upon the opposing party. If, however, the moving party intends to raise any new point not referred to in his original briefs or to cite new authorities a copy of such supplemental brief must be served upon his adversary and handed up on the call of the calendar and such opposing party will be giving leave to reply thereto.
The same practice prevails when a re-argument is granted upon an appeal from an order or judgment of the Municipal Court. The return upon appeal must be sent back from the Municipal Court to the clerk of the Appellate Term who refiles it and places it upon the calendar. If the order granting a re-argument does not so direct, an ex parte order may be obtained directing the clerk of the Municipal Court to file the return with the clerk of the Appellate Term for the purpose of a re-argument being had.
In the case of Gartland v. N. Y. Zoological Society, Law Journal, May 7, 1909, not reported, it was held that the time to appeal from the determination of the Appellate Term in a City Court case was given by Section 3193 of the Code of Civil Procedure, and in a Municipal Court by Section 1351 of the Code of Civil Procedure. Such appeal must therefore be taken within 20 days from an order or judgment of the City Court and within 30 days from an order or judgment of the Municipal Court, after service of a copy of the order granting leave with notice of its entry.
If the motion for leave to appeal or for re-argument be made returnable promptly an application for an ex parte order staying proceedings pending the hearing and determination of the motion
will be entertained or an order to show cause why leave to appeal or a re-argument should not be granted may be obtained with a temporary stay incorporated therein, provided such order is made returnable within five (5) days. The application for the order should be handed to the clerk, who will procure it to be signed by one of the justices who heard the appeal and who are alone empowered to grant a stay. Stern v. Barrett Chemical Co., 108 N. Y. Supp. 811. No other justices or branch of the Supreme Court, unless it be the Appellate Division, has authority to grant a stay upon such a motion, i. e., a stay of proceedings until the hearing and determination of a motion. The stay terminates with the entry of the order without regard to service of a copy of the order or notice of entry thereof. Tuska v. Jarvis, 61 Misc., 224; Smith v. Spalding, 30 How. Pr., 339, 442.
If leave to appeal is granted, a stay pending the hearing of the appeal in the Appellate Division will be granted, and if a re-argument is granted a stay will be granted pending the hearing of the re-argument. If leave to appeal is denied, no stay will be granted pending a motion made in the Appellate Division for leave to appeal and an application for such a stay must be made in that court.
Motions Generally - Practice.- Motions may be noticed for any day of the term and must be submitted without argument. Five days' notice of motion must be given, except motions for leave to appeal to this court under Rule VI and to dismiss an appeal. A notice of such motion, whether founded upon an order to show cause or a regular notice of motion, with proof of servlee thereof, and the opposing affidavits must be filed with the lerk of the Appellate Term at or before 12 o'clock upon the day on which the same is returnable.
All decisions will, when announced, be accompanied by an order duly signed, unless the court shall otherwise direct. Motions for resettlement of orders must be made upon two days' notice. Dated July 7, 1915.
In all motions, the motion papers and proof of service must be filed with the clerk of the Appellate Term before 12 M. of the day the same is returnable.
All papers must be endorsed with the county clerk's number of the clerk of the county embracing the court from which the appeal is taken.
The opposing party has until 12 o'clock noon of the return day in which to file opposing affidavits, and briefs may be submitted by either party up to that time. The decision of the court upon motions is embodied in an order which is filed and entered as soon as the motion is decided. No appeal lies from such an order. Gersman v. Levy, 108 N. Y. Supp. 1107, affirmed 126 App. Div. 83. If a party has served motion papers, but has failed to file them with proof of service, the opposing party upon submitting an
affidavit to that effect, and a copy of the papers served upon him, may have the motion dismissed, with costs.
Motions for stays pending appeals must be made returnable before the Appellate Term, and five (5) days' notice must be given. The same relief may be obtained under an order to show cause, which may be made returnable on two (2) days' notice. In a proper case a temporary stay, pending the hearing of the motion, will also be granted. The trial of an action in the City or Municipal Courts may be stayed by the Appellate Term, pending the hearing of an appeal from an order of either Court. Fleischman v. Mengis, 118 N. Y. Supp. 671; Amorisia v. Rand, 88 N. Y. Supp. 356.
In such motions, a copy of the pleadings, the order and of the affidavits used upon the motion in the Lower Court, both for and against the motion, should accompany the moving papers to enable the Appellate Term to determine whether there exists probable cause for review. If that is not done, or if the moving papers fail to show merit in the appeal, the motion will be denied.
If the order handed down upon the decision of a motion is not a proper order, the party desiring to have it corrected should move promptly for a re-settlement of the order. This motion may be made upon two days' notice. A copy of the order as made, together with the proposed order should be served upon the other party, with a notice to the effect that the proposed order will be submitted to the court on the day named therein for signature. The proposed order should contain a statement that such order is intended to take the place of the original order entered on the day of
The calendar rules of the Appellate Term, First Department, are hereby amended so as to read as follows:
The calendar of appeals from orders and judgments of the City Court will be called in the forenoon of the first day of the term at 10 o'clock a. M. The calendar of appeals from orders and judgments of the Municipal Court will be called on the second day of the term at 10 o'clock A. M.
In motion for leave to appeal or for re-argument, an indorsement must be made upon the motion papers stating the term of the court at which the case was argued or submitted. If an appeal upon the calendar is affected by a motion, the motion papers must be indorsed with the calendar number of such appeal.
The points on appeal from judgments and orders of the City Court shall be printed as provided for by Rule 43 of the General
Rules of Practice. The points on appeals from the Municipal Court shall be printed or typewritter upon white paper of uniform size, viz., ten and one-half inches in length and eight inches in width, and fastened on the left-hand edge thereof. Upon the right-hand corner of the points submitted to the court shall appear the name of counsel arguing or submitting the same. Upon the left-hand corner of the points submitted shall appear the calendar number of the case on appeal. All points, briefs and motion papers must be filed flat. The county clerk's number of the clerk of the county embracing the court from which the appeal is taken must be indorsed on all motion papers.
In appeals from judgments and orders of the City Court ten (10) copies of the points or briefs must be filed, and three (3) copies upon appeals from the Municipal Court must be filed.
Briefs of counsel, when reference therein is made to the testimony given upon the trial, must give the number of the folio in the printed case, if an appeal from the City Court, or the number of the page and the line thereof in the record, if an appeal from the Municipal Court.
If the appellant's brief fails to comply with this rule, the appeal may be dismissed. If the respondent's brief is deficient in this respect, the appeal may be considered on the appellant's brief alone. (Adopted July 12, 1915.)
After submission or argument of cases and submission of briefs no communications will be accepted from counsel except to correct errors or for citation of an authority. (Adopted May
RULES OF THE APPELLATE TERM OF THE SUPREME COURT IN THE SECOND JUDICIAL DEPARTMENT.
(Amended Feb. 2, 1916.)
RELATING TO THE HEARING OF APPEALS FROM THE MUNICIPAL COURT AND THE MAKING AND HEARING OF MOTIONS IN SAID APPELLATE TERM.
Calendar of Appeals. The clerk of said Appellate Term shall, at least eight days before the first day of an appointed term thereof, prepare a calendar of all the appeals to that court in which the returns, conformable in all respects with section 161 of the New York City Municipal Court Code and with Rule III, have been filed ten days prior to the commencement of such term. Such appeals shall be placed upon said calendar according to the date of the filing of the returns, respectively, shall be brought on for hearing in the manner provided in Rule IV, and shall be continued on said calendar until disposed of.
Motion to Dismiss for Want of Return.-If the appellant fails to procure the return on appeal to be made and filed as prescribed in section 161 of said Municipal Court Code, the respondent may move to dismiss the appeal, and such appeal shall be dismissed unless the justices assigned to hear the same shall, for good reason shown, extend the time. (As amended Feb. 2, 1916.)
Returns, Points, etc.- The stenographer's minutes, attached to the return, and the points on appeal, shall be printed or typewritten upon white paper of the quality and weight prescribed in section 796 of the Code of Civil Procedure, shall be of uniform size, namely, ten and one-half inches in length and eight inches in width; the stenographer's minutes shall be numbered at the bottom of the page, fastened at the left hand edge, bound with suitable cover, and appropriately indexed. Such points shall be fastened on the left hand edge thereof and the number of the appeal shall be indicated thereon, and on the upper right hand corner of the points submitted to the court shall appear the name of the counsel arguing or submitting the same.
All returns on appeal, including the evidence, the exhibits and all papers relating thereto, all points, briefs and all motion papers for submission to the court must be flat and so delivered to the clerk of the Appellate Term; all motion papers for submission to the Appellate Term, or to a justice thereof, must comply with the foregoing conditions as to quality and weight. The exhibits offered by each party shall be copied in typewriting and