Rule 150. Notice of trial. 151. Note of issue. TITLE 20 NOTICE OF TRIAL AND OF ISSUE Rule 150. Notice of trial. At any time after the joinder of issue and at least fourteen days before the commencement of the term, or the opening of an adjourned term, either party may serve a notice of trial. EDITORIAL NOTES Source: CCP § 977, first sentence, except italicized matter which covers CCP § 34. CCP 977 revised from CP § 256. as amended by L 1876, c 431, § 9; L 1877, c 416; L 1882, c 96; L 1896, c 565; L 1898, c 70; L 1899, c 18; L 1903, c 51; L 1904, c 474; L 1907, c 211; L 1909, c 65; L 1911, c 218; L 1912, c 96; L 1915, c 60. CCP § 34 added by L 1909, c 65. CCP 977 read: "At any time after the joinder of issue, and at least fourteen days before the commencement of the term, either party may serve a notice of trial. The party serving the notice must file with the clerk a note of issue, stating the title of the action, the names of the attorneys, the time when the last pleading was served, the nature of the issue, whether of fact or of law; and, if an issue of fact, whether it is triable by jury, or by the court, without a jury and the particular nature of the same and the object of the action. The note of issue must be filed at least twelve days before the commencement of the term. The clerk must thereupon enter the cause upon the calendar according to the date of issue. The clerk must prepare the calendar and have the necessary copies ready for distribution at least five days before the commencement of the term. the counties of New York, Kings, Bronx, Queens, Nassau, Richmond, Albany, Erie, Niagara, Monroe, Onondaga, Schenectady, and Westchester, where a party has served a notice of trial, and filed a note of issue, for a term at which the case is not tried, it is not necessary for him to serve a new notice of trial, or file a new note of issue, for a succeeding term; and the action must remain on the calendar until it is disposed of." In Text in italics is new matter, inserted June 17, 1921. Editor's Note: The last sentence of CCP § 977, which, under the doctrine of express mention and implied exclusion, was held to require a new notice of trial to be served and a new note of issue to be filed for a succeeding term in all counties not specified in said sentence, has been omitted entirely both from the Civil Practice Act and the Rules of Civil Practice. Notwithstanding that the omission of such sentence removed the necessity for serving a new notice of trial or for filing a new note of issue for a succeeding term in any county, yet the Appellate Divisions of the First and Second Departments have uselessly recopied the last sentence of CCP § 977 into their rules, as shown below. Special Rule in First Department: "In the counties of New York and Bronx, where a party has served a notice of trial and filed a note of issue for a term at which the cause is not tried, it is not necessary for him to serve a new notice of trial or file a new note of issue for a succeeding term, and the action must remain on the calendar until it is disposed of." (Feb 7, 1922, 66 NYLJ 1624). This Special Rule known as Rule 18 of the Special Term is Rules in New York County, Rule 10 of the Trial Term Rules in New York County, and Rule 11 of Special and Trial Term Rules in Bronx County. It is dated January 16, 1922, effective as of September 30, 1921. Special Term Rule in Second Department: "In the Counties of Kings, Queens, Nassau, Richmond and Westchester, where a party has served a notice of trial and filed a note of issue for a term at which the case is not tried, it is not necessary for him to serve a new notice of trial or file a new note of issue for a succeeding term, and the action must remain on the calendar until it is disposed of." This Special Rule is dated January 25, 1922, effective as of September 30, 1921. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. HISTORY (Morse 71 AD 351, 75 NYS 976). ISSUE JOINED After last pleading: which presents issues to be tried is served (Grant 129 AD 77, 113 NYS 502). After service of: amended answer (Joyce 99 Mis 361, 163 NYS 623); answer (Grossman 71 Mis 143, 128 NYS 7); demurrer (Rosenbach 2 F 23; Townsend 18 CivP 213, 9 NYS 629); rely (Grant 129 AD 77, 113 NYS 502). Before service of: answer (*Sanders 44 Mis 171, 89 NYS 785). NOTICE NECESSARY— Calendar: before case can go upon (Fisher Malting Co 92 AD 251, 87 NYS 37; Haskin 29 AD 370, 51 NYS 542). Certiorari: return to denying no allegations of petition and not setting up new matter (*PxPhoenix Assur Co 52 Mis 311, 102 NYS 189). Cross-notice of trial: unnecessary to enable court to dispose of demurrer as contested motion, both parties appearing at trial thereof (*Am Men's etc Assn 190 AD 164, 179 NYS 207). Demurrer: before disposing of issue raised by (Ventriniglia 138 AD 274, 122 NYS 966). Full notice necessary: unless waived or conditions imposed on granting favor (Leland 3 Daly 309, 11 AbNS 231); order granting leave to serve same providing that no new notice should be served (*Myers 16 Daly 410, 12 NYS 4); order made that case retain place on calendar (*Mossein 117 AD 820, 102 NYS 1013). New notice necessary: after amendment of complaint (Miller 84 NYS 503; Keilty 25 Mis 351, 55 NYS 744; Fisher 12 Mis 207, 34 NYS 27; Romaine 24 NYS 67, 54 StR 115; Graham 13 NYS 562, afg 19 CivP 452; McBridge 19 CivP 41, 11 NYS 626; Ostrander 20 Hun 421); after service of amended answer (Grossman 71 Mis 143, 128 NYS 7; Murphy 127 AD 448, 112 NYS 152; Woolett 36 Mis 494, 73 NYS 1005; Leonard 31 AD 137, 52 NYS 772; Haskin 29 AD 370, 51 NYS 542; Coler 19 AD 236, 46 NYS 117: Yates 18 Mis 295, 42 NYS 109; Grindal 40 StR 233, 15 NYS 823; Gair 20 CivP 233. 15 NYS 147); altho no counterclaim set Referee: notice of trial before (Mohrmann 2 Retention notice: by plaintiff not a waiver Successive notices: one notice sufficient (Marks 27 AD 160, 50 NYS 622). ACCEPTANCE OF NOTICE REQUIREDAfter refusal: because costs of former motions had not been paid (*Koehler 7 CivP 81). NOTICE PROPER Certiorari: return to denying no allegations NOTICE SUFFICIENT Clerical error: notice for 3rd Monday instead of 3rd Tuesday of November, no one being misled (Bander 4 Cow 60); notice for 3rd Tuesday instead of 3rd Monday of June (NY Cent Ins Co 13 How 535); Tuesday, notice for, instead of Monday the 18th of the month (Wolfe 3 Cai 86). cause Form: no particular kind required (Town- Test of sumcient: of notice improperly made term succeeding that for which plaintiff had noticed case for trial (*Montgomery 91 AD 18, 86 NYS 344); one of many, issue joined as to him (Simon 179 AD 273, 166 NYS 466). Plaintiff: (Grossman 71 Mis 143, 128 NYS 57; American Exch Bk 58 AD 320, 68 NYS 1097). WHO ENTITLED TO Codefendant: who has appeared but not answered (Tracy 1 EDSmith 349). Guardian ad litem: for infant may accept short notice of trial (Newins 19 Hun 306). SERVICE OF NOTICE TIMELY After answer: altho liable to be defeated by amended pleading (Langer 54 Mis 301, 103 NYS 1086); right to serve amended answe not having been exercised within time limited (Cook 103 NYS 581). Before amended answer: but on same day 785); as to all but one defaulting defendant (Grant 129 AD 77, 113 NYS 502). Less than fourteen days: before term (*Roberts 76 AD 433, 78 NYS 778; *Veinstock 63 AD 16, 71 NYS 195; Joyce 99 Mis 361, 163 NYS 623; *Rosenbach 2 F 23). Partition: before having issued to be tried by jury stated, in action for (Jackson 69 Mis 213, 126 NYS 712). Reply: before plaintiff's time to, had expired (*Meislahn 45 StR 676). Sixteen days before term: when served by mail (Germania Life Ins Co 29 Mis 424, 61 NYS 942). Stay: served by plaintiffs while under WHO MAY OBJECT TO FAILURE TO NOTICE WAIVED Appearance: and no objection to want of IRREGULARITIES WAIVED— Stipulation: service of notice before answer waived by (Burroughs 15 AbNS 144). RULE APPLICABLE Notice of argument: on appeal to general term (*Walsh 19 AbP 363). Referee: notice of hearing before in special But not applied: (McCarron 15 AыNC 282; Rule 151. Notice of issue. A party who has served a notice of trial shall file with the clerk a note of issue stating the title of the action, the names of the attorneys, the time when the last pleading was served, the nature of the issue, whether of fact or of law, and, if an issue of fact, whether it is triable by a jury or by the court without a jury, and the particular nature and object of the action. The note of issue shall be filed at least twelve days before the commencement of the term. The clerk thereupon must enter the cause upon the calendar according to the date of issue. The clerk must prepare the calendar and have the necessary copies ready for distribution at least five days before the commencement of the term. EDITORIAL NOTES Source: CCP § 977, second, third, fourth and fifth sentences covered. For revision and amendments see Rule 150. Text in italics is new matter, inserted June 17, 1921. Special Rule in First Department: See Rule 150. Special Rule in Second Department: See Rule 150. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. NOTE OF ISSUE NECESSARY— Calendar: before setting case down upon (Haskin 29 AD 370, 51 NYS 542). Costs: to entitle defendant after notice of trial to (Gilroy 30 Mis 830, 61 NYS 924). New note: after amendment of complaint (Miller 84 NYS 503; Keilty 25 Mis 351, 55 NYS 744; Fisher 12 Mis 207, 34 NYS 27; Romaine 24 NYS 67, 54 StR 115; Graham 13 NYS 562, afg 19 CivP 452); after service of supplemental complaint (*Lovatt 35 Hun 553); plus order granting leave to serve same providing that no new notice of trial should be served (*Myers 16 Daly 410, 12 NYS 4); after service of amended answer (Murphy 127 AD 448, 112 NYS 152; Van Norden Tr Co 125 AD 369, 109 NYS 725; Woolett 36 Mis 494, 73 NYS 1005; Leonard 31 AD 137, 52 NYS 772; Haskin 29 AD 370, 51 NYS 542; Coler 19 AD 236, 46 NYS 117; Yates 18 Mis 295, 42 NYS 109); altho counterclaim not set up (Jones 30 Mis 65, 62 NYS 883); after service of reply (Ward 103 AD 375, 92 NYS 1107); failure to file in accordance with court rule requiring new note of issue upon making new calendar does not affect place of cause on old calendar governed by code. (*Willner 61 Mis 73. 113 NYS 31, rvg 60 Mis 358, 113 NYS 633; Schwartz 108 NYS 651; *Rauch berger 52 Mis 518, 102 NYS 561); for succeeding term, case not reached in previous term (Marden 28 AD 301, 50 NYS 1002); upon making up new calendar by order of appellate division of supreme court (Hix 78 AD 384, 79 NYS 1016). Notice of trial: not rendered void by failure to file note of issue (Am Exch Bk 58 AD 320, 68 NYS 1097). NOTE OF ISSUE PROPER For term succeeding: that for which plaintiff had noticed case for trial (*Montgomery 91 AD 18, 86 NYS 344). NOTICE OF ISSUE TIMELY Notice of trial: before (*McMann 92 AD 249, 87 NYS 38; Gowing 22 CivP 10, 15 NYS 771); omission to furnish excused, and counsel allowed to file, motion brought up on first day of term (Clinton 43 How 95). Succeeding term: filed for, to that for which cause noticed for trial (*Weaver 187 AD 827, 175 NYS 609; *Culver 30 How 442, 4 Rob 681). CHANGE OF FILING DATE PERMISSIBLE Nunc pro tunc: (*Gair 20 CivP 233, 15 NYS 147). Reply: after having granted leave to serve (Hunnewell 30 StR 831, 9 NYS 540). NOTE OF ISSUE WAIVED By stipulation: (*Weaver 187 AD 827, 175 NYS 609; *Woolett 36 Mis 494, 73 NYS 1005); new note, after amendment of complaint (*Keilty 25 Mis 351, 55 NYS 744), of answer (Leonard 31 AD 137, 52 NYS 772). New note: by receiving new notice of trial for subsequent term (*Ward 103 AD 375, 92 NYS 1107). ENTRY OF CAUSE ON CALENDAR NECESSARY Order dismissing complaint: before taking (Browning 7 How 487). CAUSE PROPERLY ENTERED ON CAL ENDAR Amended answer: changing date of issue, not entered according to that date (*Van Norden Tr Co 125 AD 369, 109 NYS 725). Commencement of term: after (*Tauziede 16 NYS 377). Fourteen days: entered within, after issue joined by service of amended answer (*Joyce 99 Mis 361, 163 NYS 623). New issue: placed on calendar under date of, as formed by service of amended complaint (Ziegler 52 NYS 613). New trial: upon, cause cannot appear on day calendar without special order (Hodges 2 LawB 67). Note of issue not filed: (Fougner [Jan 21, 1922] 66 NYLJ 1409). Statutes: authorizing date for which cause must be placed on calendar must be followed (North 14 AbP 223). Succeeding term: to that for which trial noticed (*Weaver 187 AD 827, 175 NYS 609; Culver 30 How 442, 4 Rob 681). CALENDAR PROPERLY PREPAREDPosition in proper order: given by clerk (Hinman 18 AbNC 472). New issue: raised by amended answer controls position of cause on calendar (Black 2 AbNS 333). Rule 155. Order containing stay. TITLE 21 TRIAL 156. Motion for dismissal of complaint. 157. Settlement of issues for trial by jury. 158. Terms at which issues of fact triable. 159. Stipulation for trial elsewhere than at court house. 160. Papers to be furnished on trial. 161. Opening and closing speeches and examinations. 162. Production of books and papers by library associations, public departments and 163. Application for order to produce prisoner as a witness. 165. Entry of verdict. 166. Defects in pleadings; variance; failure of proof. EDITORIAL NOTES Civil Practice Act references: Trial generally, CPA §§ 421-447; Jury trial of specific questions of fact when of right, CPA §429; Jury trial of specific questions of fact, when discretionary, CPA § 430; Terms at which issues tried, CPA § 432; Variance between pleading and proof, CPA § 434; Trial elsewhere than at court house, CPA 437; Nonsuit after jury retires, CPA 457; Direction of a verdict, CPA § 457-a; General and special verdict and special findings, CPA § 459; Trial by jury, CPA $$ 448-463; Trial by referee, CPA §§ 464471. Rule 155. Order containing stay. An order served less than ten days before the beginning of a term in which an action may be reached for trial shall not stay proceedings unless made by the judge who is appointed to hold such term, nor unless such stay is contained in an order to show cause returnable on the first day of such term, in which case it shall not operate to prevent the subpoenaing of witnesses or placing the cause on the calendar. This shall not apply to orders of the appellate division or of a judge thereof. EDITORIAL NOTES Source: All except last paragraph is General Rule of Practice 37, third paragraph; last paragraph is new. Formerly Law Rule 48; Rule 28 of 1849; Rule 25 of 1852: Rule 39 of 1858; Rule 46 of 1871, 1874; Rule 37 of 1877; Rule 38 of 1880; Rule 27 of 1884, 1888, 1896, 1900, 1910, 1913. General Rule 37 read: "No order, except in the first judicial district, served after the ac tion shall have been noticed for trial if served within ten days of the trial term, shall have the effect to stay the proceed ings in the action, unless made at the term where such action is to be tried, or by the judge who is appointed or is to hold such trial term, or unless such stay is contained in an order to show cause returnable on the first day of such term, in which case it shall not operate to prevent the subpoenaing of witnesses or placing the cause on the calendar." Text in italics is new matter, inserted June 17, 1921. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. Rule 156. Motion for dismissal of complaint. Whenever an issue of fact in any action pending in any court has been joined and the plaintiff therein shall fail to bring the same to trial within a reasonable time according to the course and practice of the court, the defendant, at any time after later issues shall have been tried in their regular order, may move for the dismissal of the complaint with costs. If it be made to appear to the court that the neglect of the plaintiff to bring the action to trial has not been unreasonable, the court may permit the plaintiff, on such terms as may be just, to bring the said action to trial at a future term; otherwise the complaint shall be dismissed. EDITORIAL NOTES Source: General Rule of Practice 36, first two sentences. "Later issues" read "younger issues," and "at Special Term" omitted after "move." Formerly Rule 23 of 1849; Rule 21 of 1852; Rule 27 of 1858; Rule 45 of 1874; Rule 36 of 1877, 1880, 1884, 1888, 1896, 1900, 1910, 1913. Text in italics is new matter, inserted-June 17, 1921. Civil Practice Act references: Dismissal of complaint for neglect to proceed, CPA § 181. Star (*) means read Not into HEADLINE in capitals. For illustration see Rule 1. MOTION FOR DISMISSAL: TIMELY— Later issues tried: after (Roy 1 Duer 636, Motion granted: but facts not stated (Tills. paugh 8 How 33). ---------- Noticing cause for trial: after, by defendant (Moeller 14 How 359; US Fidelity & Guaranty Co 138 AD 275, 122 NYS 882; Israel 12 Mis 206, 34 NYS 28); before (Roy 1 Duer 636, 8 How 253); plus failure to move for dismissal when reached on calendar (Miller 18 AbP 244). REASONABLE TIME— Eighteen months: (*Jacob 26 Mis 670, 57 NYS 904); after new trial granted (*Class Journal Co 145 NYS 958). Eight years: (*Finn 137 AD 60, 122 NYS 37). Five years: (*Silverman 42 AD 21, 58 NYS 663; Toher 124 AD 370, 108 NYS 667; about (*Forber 133 AD 739, 118 NYS 214); over (*Zafarano 80 AD 144, 80 NYS 510; *Mladinich 112 AD 181, 98 NYS 46). Four years: (Tuttle 155 AD 802, 140 NYS 930); over (*McCardell 124 AD 528, 108 NYS 990). Latter issues tried: after (*McGrath 128 AD 278, 112 NYS 679; *PxArfken 106 AD 590, 94 NYS 812; *Pocuinas 74 Mis 407, 132 NYS 395). Seven months: where defendant in jail (*Taber 60 Supr 65, 16 NYS 613). Seven years: (*Ingri 134 AD 960, 119 NYS 502). Six years: (*Seymour 12 AD 300, 42 NYS 92). Ten years: (*Watson 51 Mis 227, 100 NYS 958). Three years: (*Regan 123 AD 72, 107 NYS 722; Fisher Malting Co 92 AD 251, 87 NYS 37; Graham 21 AD 416, 47 NYS 562); over 116 AD 231, 101 NYS 585; (Anderson McMann 92 AD 249, 87 NYS 38); where reserved for convenience of both parties (Clare 34 StR 120, 11 NYS 519). Sixteen years: over (*Jewett 14 WkD 200). Twenty years: (*James 28 Hun 74). Two years: about (*Israel 12 Mis 206, 34 NYS 28); over (*Kachel 137 AD 199, 121 NYS 979; *Holtzoff 134 AD 353, 119 NYS 47; Ellsworth 16 Hun 1). DELAY EXCUSED— Alimony: nonpayment of (*Taber 60 Supr 65, 16 NYS 613). Another action pending: involving same purpose (*Frohman 136 AD 430, 120 NYS 900). Attorney: agreement of, setting case for future date (Fuller 9 How 74); clerk of, who had full charge, went on spree and never returned (*McCardell 124 AD 528, 108 NYS 990); dissolution of partnership and nonagreement as to substitution (*Regan 123 AD 72, 107 NYS 722); entry in register that managing clerk had directed assistant not to place it on trial (*McGrath 128 AD 278, 112 NYS 679); fire in office of destroying a great many papers (*Holtzoff 134 AD 353, 119 NYS 47); forgetting that action pending (*Silverman 42 AD 21, 58 NYS 663); illness, without showing character of it (*Seymour 12 AD 300, 42 NYS 92); inadvertence (*McMann 92 AD 249, 87 NYS 38). Defendant: consent to adjournments (*McHugh 51 Mis 588, 101 NYS 95); failure to put on calendar and notice for trial test case (Graham 21 AD 416, 47 NYS 562); a laches (Jacob 26 Mis 670, 57 NYS 904); lack of assets (*Class Journal Co 145 NYS 958); stay by (Unger 30 How 443). Difficult and unusual nature of cases: and the character and course of litigation (Hathorn 83 Mis 582, 146 NYS 271). Diligence: after motion served (Finn 137 AD 60, 122 NYS 37; *Holtzoff 134 AD 353, 119 NYS 47). Discretion of court: where good cause of action alleged and party wishes to try it on merits (Osborne 5 WkD 589). Notice of trial: after motion served (*Israel 12 Mis 206, 34 NYS 28); and case on general calendar (*Fisher Matting Co 92 AD 251, 87 NYS 37); just prior to motion (*Seymour 12 AD 300, 42 NYS 92); plus placing on day calendar, where stricken and not restored (*Toher 124 AD 370, 108 NYS 667). Poverty: inability to pay attorneys (*Tuttle 155 AD 802, 140 NYS 930; Kachel 137 AD 199, 121 NYS 979; *Mladinick 112 AD 181, 98 NYS 46). Settlement of claim: where attorney took no steps to enforce his lien (*Crisenza 12 AD 611, 106 NYS 335). Witness: sickness of and offer to pay defendant's cost of the circuit (Hawley 8 How 96). CONDITIONS IMPOSED IN DENYING MOTION: JUST— Additional time: to proceed (Ellsworth 16 Hun 1). Costs: (Haberstitch 67 How 318); plus placing cause on calendar for December term (Perkins 42 How 102); plus reference (Graham 21 AD 416, 47 NYS 562); stipulation to try case without further delay (US Fidelity & Guaranty Co 138 AD 275. 122 NYS 882; Mladinich 112 AD 181. 98 NYS 46); substitution of receivers (Moffett etc Co 83 Hun 73, 31 NYS 713). Lien: creation of on land in defendant's favor (Graham 21 AD 416, 47 NYS 562). Notice of trial: for next term of court (Taber 60 Supr 65, 16 NYS 613). Supplemental complaint: filing of and issue summons thereon (Chapman 15 How 241). RELIEF, IN ADDITION TO DISMISSAL, PROPER Judgment for defendant: on contested counterclaim (*Vessell 10 Mis 46, 30 NYS 806). MATTERS CONSIDERED ON MOTIONJurisdiction: of court (*Moffett etc Co 8: Hun 73, 31 NYS 713). DISMISSAL FOR NEGLECT TO PROSECUTE: WHAT CONSTITUTESDiscretion of court: to deny to dismiss (*Society for Ref 2 LawB 93). Due diligence: failure to use after answers put in and noticed for hearing by one defendant (Salters 15 AbP 224). Failure to answer calendar call: at trial term (*Sweeting 176 AD 494, 162 NYS 961). Failure to serve: some of defendants with process (Morris 16 AbP 124). Refusal to proceed: after jury drawn (Haberstitch 6 CivP 82, 67 How 318). WHO MAY MOVE Defendant: one of several (Ward 12 How 193). Rule 157. Settlement of issues for trial by jury. If a party desire to have an issue of fact framed for trial by jury, not as a matter of right but in the discretion of the court, the party shall give notice of a motion therefor within twenty days after issue joined. If such motion be not made within such time, the right to apply for a trial by jury is waived. With the notice of motion shall be served a copy of the questions of fact proposed to be submitted to the jury for trial, in proper form to be incorporated in the order, and the court or judge may settle the issues. EDITORIAL NOTES Source: General Rule of Practice 31, second, third and fourth sentences. Formerly Equity Rule 59; Rule 74 of 1849; Rule 69 of 1852; Rule 33 of 1858; Rule 40 of 1871, 1874; Rule 31 of 1877, 1880, 1884, 1888. 1896, 1900, 1910, 1913. Text in italics is new matter, inserted June 17, 1921. Civil Practice Act references: Jury trial of |