or an interlocutory judgment, but before final judgment is entere the court must enter final judgment, in the names of the origin parties; unless the offer, verdict, report, or decision, or interlocutory judgment, is set aside. 2 R. S. 387, § 4, am'd. § 764. Action for a wrong not to abate after verdict, et After verdict, report, or decision, in an action to recove damages for a personal injury, the action does not abate by th death of a party, but the subsequent proceedings are the sam as in a case where the cause of action survives. And in ca: said verdict, report or decision is reversed upon questions law only, said action does not abate by the death of the par against whom the same was rendered. 765. No verdict, etc., can be taken after a party death. This title does not authorize the entry of a judgment again a party, who dies before a verdict, report, or decision is actual rendered against him. In that case, the verdict, report, decision is absolutely void. 2 R. S. 387, § 5 (2 Edm. 402), am'd. § 766. Death, etc., of public officer or trustee. Where an action or special proceeding is authorized or direct by law, to be brought by or in the name of a public officer. by a receiver, or other trustee, appointed by virtue of a statul his death or removal does not abate the action or special p ceeding; but the same may be continued by his successor, w must, upon his application, or that of a party interested, substituted for that purpose, by the order of the court, a co of which must be annexed to the judgment-roll. 2 R. S. 388, § 14; and L. 1832, ch. 295, § 3 (3 Edm. 674); consolidated. 186 TITLE V. Motions and orders generally. ec. 767. Definition of an order. 768. Id.; of a motion. 769. Motions in supreme court; where to be heard. 770. Motions in New-York city. 771. In absence of judge, motion may be transferred to another judge. 772, 773. What judges may make orders out of court, without notice. 774. Review of order made by a judge of another court. 775. When stay of proceedings not to exceed twenty days. 776. Subsequent application for order after denial, etc., of prior applica. tion. 777. Id.; as to application for judgment. 778. Penalty for violating last two sections. 779. Costs of a motion; how collected. 767. Definition of an order. A direction of a court or judge, made, as prescribed in this act, an action or special proceeding, must be in writing, unless therwise specified in the particular case. Such a direction, nless it is contained in a judgment, is an order. Co. Proc., § 400, am'd. § 768. Id.; of a motion. An application for an order is a motion. Id., § 401, subd. 1. § 769. [Am'd, 1879.] Motions in supreme court; where o be heard. A motion, upon notice, in an action in the supreme court, must e made within the judicial district in which the action is riable, or in a county adjoining that in which it is triable; xcept that where it is triable in the first judicial district,* the otion must be made in that district; and a motion upon notice, annot be made in that district in an action triable elsewhere. But this section does not apply to a case where it is specially rescribed by law that a motion may be made in the county. where the applicant, or other person to be affected thereby, or he attorney, resides. Id., § 401, subd. 4, am'd. 770. Motions in New-York city. In the first judicial district, a motion which elsewhere must e made in court, may be made to a judge out of court, except or a new trial on the merits. Id., subd. 2. § 771. In absence of judge, motion may be transferred o another judge. Where notice of a motion is given, or an order to show cause s returnable, before a judge, out of court, who, at the time ixed for the motion, is or will be absent, o unable, for any other cause, to hear it, the motion may be transferred, by his order, made before or at that time, or by the written stipulation of the attorneys for the parties, to another judge, before whom t might have been originally made. Id., § 404, am'd. • The words, "the motion must be made in that district", omitted by rror in engrossing. § 772. [Am'd, 1895.] What judges may make orders ou of court, without notice. Where an order, in an action, may be made by a judge of the court, out of court, and without notice, and the particular judg is not specially designated by law, it may be made by any judg 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 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. Co. Proc., § 401, subd. 3; and id., § 324, consolidated and am'd. Se ante, § 241; L. 1895, ch. 946. § 773. The same. 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. [Am'd, 1877.] of another court. Review of order made by a judge An order, made by a judge of a court, other than the cour in which the action is pending, may be reviewed in the same manner, as if it was made by a judge of the court, in whic the action is pending. Co. Proc., § 403, last clause, am'd. See § 327, ante. 775. [Am'd, 1877.] exceed twenty days. When stay of proceedings not to An order to stay proceedings in an action, for a longer time than twenty days, shall not be made by a judge, out of court except to stay proceedings under an order or judgment appeale 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. Id., § 401, subd. 6. § 776. Subsequent application for order after denial 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 referenc to the same matter, and in the same stage of the proceedings shall be made only to the same judge, or to the court. If it is made to another judge, out of court, an order granted there upon 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. S. 281, § 27 (2 Edm. 297); and id. 173, §§ 32, 33, and 34 (2 Edm. 179) § 777. Id.; as to application for judgment. Where an application is made to the court for judgment, i cannot be withdrawn, without the express permission of th court; and a subsequent application for judgment shall not be made, at a term held by another judge, except where the firs application is so withdrawn; or where the directions, giver 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. § 778. 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. S. 281, § 28. § 779. [Am'd, 1879, 1882 and 1884.] Costs of a 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 made payable 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, omitting 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 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. 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; L. 1884, ch. 181. 189 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. ARTICLE FIRST. General regulations respecting time. Sec. 780. Notice of motion, to be eight days. 785. Qualification of last section. 786. Orders in certain actions; how published. § 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 L. 1890, ch. 219. § 781. How 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. § 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. Id. § 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 consequences 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. 190 |