Page images
PDF
EPUB

Eight days' notice of hearing must be given to the opposite party and a note of issue must be filed as provided in Rule 4.

Rule 4. Note of issue and hearing of non-enumerated appeals. At least 8 days before the day for which such appeal shall have been noticed, the appellant or moving party must file with the clerk, a note of issue, which must state the day when the notice of appeal was served, and must also file with such clerk, as required by Rule 41 of the General Rules of Practice, a printed copy of the papers upon which the appeal or cause is to be heard, duly authenticated as required by the rule, and 17 printed copies of such papers, with proof of service of three printed copies on the attorney for the respondent and the clerk shall place such appeal on the calendar of nonenumerated appeals. If an appeal shall have been noticed for argument by the respondent, and the appellant or other party whose duty it is to file printed copies of the papers upon which the appeal is to be heard, shall fail to file the same at least 8 days before the day for which such appeal is noticed, the opposite party may move upon affidavit giving 3 days' notice of motion that the appeal be dismissed or that judgment be rendered in his favor.

At any time before 3 o'clock of the day preceding the day upon which a non-enumerated cause shall have been noticed for argument, or to which the hearing thereof shall have been adjourned, the respective counsel may file a written consent with the clerk that the cause may be set down for a subsequent motion day; and causes so set down will be added to the calendar of that day after the causes remaining thereon undisposed of, without further notice.

Rule 5. Enumerated calendar. The clerk will make up a calendar of enumerated causes for each term of the Court, which shall consist of the enumerated causes upon the calendar of the preceding term undisposed of together with new causes which shall have been noticed as hereinafter provided.

Rule 6. Enumerated causes, serving notice of argument and filing note of issue. After the printed copies of the papers and points shall have been filed, as required by Rule 9, either party may notice the cause for argument, for the opening day of the next term, by giving 8 days' notice to the opposite party, and upon filing with the clerk such notice of argument, with admission or proof of service thereof, and a note of issue, which shall state the day upon which the notice of appeal was served, 8 days' before the opening day of the term, the clerk shall place the cause on the calendar for the term noticed, provided points have been filed and served as required by Rule 9 or the time for respondent to file points has elapsed.

Rule 7. Dismissal of appeals for failure to serve and file appeal papers. In case the party whose duty it is to file and serve the printed papers, fails to file or serve the same, as hereinbefore required, the opposing party may move upon 3 days' notice, that the appeal be dismissed, or that judgment or order be rendered in his favor.

Rule 8. Preference, how claimed. Either party to an appeal, which by law is entitled to a preference, may serve with the notice of argument a notice that application will be made on the next motion day for an order placing the cause upon the day calendar upon a day named in the notice of motion, and such application will be heard as a motion on the motion day for which the same is noticed.

Rule 9. Enumerated calendar; points. Within 20 days after the papers upon which an appeal is to be heard shall have been filed with the clerk of this Court as required by Rule 41 of the General Rules of Practice (except when the papers are filed in July or August), the appellant, plaintiff in a controversy submitted to the Court under Section 1279 of the Code of Civil Procedure, the relator in a writ of certiorari, or the moving party in an enumerated cause, must file with the clerk 17 printed copies and serve on the attorney for his opponent 3 printed copies of the points relied upon by him, with a reference to the authorities cited. Within 15 days after such service the respondent or defendant must file with the clerk 17 printed copies and serve on the attorney for the appellant or moving party 3 printed copies of the points relied upon by him, with a reference to the authorities cited. If the appellant or moving party wishes to present points or authorities in reply he shall file with the clerk 17 printed copies and serve 3 printed copies thereof on the attorney for his opponent within 5 days after the receipt of his opponent's points. When the papers are filed in July or August the appellant's points must be filed at least 20 days before the first Monday

of October. The Court will take no points on the argument or submission of the appeal unless they shall have been filed and served as hereinbefore provided. By stipulation of the attorneys or counsel, the times herein provided, for filing papers may be modified, provided that all such papers shall be filed before the cause shall be placed on the Calendar.

Rule 10. Dismissal for not filing points. If the appellant fails to file and serve the papers aforesaid, respondent may move on any motion day upon 3 days' notice to dismiss the appeal.

Rule 11. Time for argument. Fifteen minutes in motions and non-enumerated causes and 45 minutes in enumerated causes shall be allowed counsel on each side, unless before beginning of the argument, the time shall be specially extended.

Rule 12. Excusing neglect in prosecution of appeals. When a motion is made to dismiss an appeal for want of prosecution, or other neglect, the affidavits to oppose such motion, in addition to stating matters excusing the delay, must also set forth concisely the facts out of which the controversy arose, and the question of law and fact involved, so as to show that the appeal is meritorious.

Rule 13. No points or brief received after argument unless by special leave of court. The Court will not receive any brief or memorandum of authorities after the argument of a motion or an appeal, unless after notice of such application to opposing counsel, the Court grant such permission.

Rule 14. Engagements of counsel recognized in this court. Engagements of counsel in the courts hereinafter named will be recognized:

The Supreme Court, the Circuit Court of Appeals, the District Court, of the United States.

The Court of Appeals, the Appellate Division in any other Department, the Appellate Term, Trial Terms and Special Terms for Trials of the Supreme Court, Trials in the Surrogate's Court, Trials in the County Court.

Rule 15. Causes on day calendar in first and second departments. Counsel in causes upon the day calendar of the Appellate Divisions of the First and Second Departments shall attend Court in that Department in which the cause stands nearer the head of the calendar; in the other Department his cause will be held until his engagement is finished. If such causes are equally distant from the heads of the respective day calendars, Counsel shall attend Court in the First Department.

Rule 16. Submission on points. Where the printed copies of the required papers and points upon which an appeal is to be heard have been filed with the clerk, either party may by written stipulation, signed by the attorneys or counsel who are to argue the cause, submit the appeal upon such papers, or may so stipulate in court on the day the cause is called on the day calendar.

Rule 17. Stipulations adjourning causes. Enumerated causes noticed and placed upon the calendar may be reserved by written consent for a day subsequent to the time when they would be reached in their order, but not, however, later than the first week of the term; and causes stipulated to go over to a future term, shall be placed on such later calendar after the Causes regularly noticed for such term, unless the Court shall order otherwise.

Rule 18. Citation of statutes. Where a statute is cited, so much thereof as may be deemed necessary to the decision of the cause shall be printed in the brief.

Rule 19. Criminal appeals. Appeals in criminal causes, taken too late to be placed upon the regular calendar, may be added to the calendar at any time, and brought on for hearing as preferred causes, upon a notice of 10 days to the adverse party, as provided in section 535 of the Criminal Code. A note of issue must be filed with the clerk at least 5 days before the day on which the cause is to be heard, and he shall put the same upon the calendar for the day on which it shall be so noticed, or upon which it shall be ordered by the Court or stipulated by the parties, to be heard.

Rule 20. Name of counsel on points. To aid the reporter, counsel who argues the cause orally shall print or write his name on the top of first page of his points.

Rule 21. Motions for re-argument and re-settlement. Motions for re-argument will be heard not later than at the next term of Court after the decision is handed down,

unless for special reasons the Court grant leave for a later application. Notice of 5 days shall be given to the adverse party, stating briefly the ground upon which a re-argument is asked, and such motions must be submitted upon printed briefs, stating concisely the points supposed to have been overlooked or misapprehended by the Court, with proper reference to the particular portion of the record and the authorities relied on; and a copy of the opinion delivered by this Court in deciding the cause; but counsel will not be heard orally. Motions to re-settle orders to be on 3 days' notice to the adverse party shall be submitted without oral argument.

If re-argument be ordered, causes so set down shall be preferred on the day calendar. Rule 22. Allowance of an appeal to the court of appeals. Applications to allow appeals under section 190 of the Code of Civil Procedure, subdivisions 3 or 4, may be noticed and heard orally as motions. The moving papers should distinctly point out the precise questions of law thus sought to be brought up for review.

Rule 23. Causes filed and undisposed of. Enumerated and non-enumerated causes, where the papers have been filed with the clerk and where no note of issue has been filed for a stated term, shall in every year be placed on a special calendar for the November term of this Court, for final disposition.

Rule 24. Admission of attorneys in this department. Notice of the time of application for admission as attorneys by those who have passed the examination prescribed by the rules of the Court of Appeals, will be published in the Law Journal, at which time applicants must file with the clerk the papers enumerated in Rule I. of the General Rules of Practice, and appear personally before the Committee on Character to furnish such information as the committee may desire from them.

Rule 25. Applications for naturalization in the supreme court in this department. All applications of aliens to become citizens of the United States must be heard at the various Special Terms as directed and indicated in the assignment of justices for holding such terms.

Rule 26. Bonds for examiners of title. All bonds executed by individual sureties in accordance with the provisions of Section 9 of Chapter 444 of the Laws of 1908, and the Rules of the Court of Appeals adopted pursuant thereto, must contain a statement of the place of residence of each surety, giving the street number, if such residence is so known and designated, and in addition to the facts required by the Rules of the Court of Appeals to be stated in the affidavit of justification, each surety must specifically state what property is owned by him, giving a brief description thereof, and also state the value of the same and what, if any, liens or encumbrances there are on such property, with a brief description of the nature and amount of such lien and such other facts as may indicate his responsibility.

Rule 27. Applications for leave to appeal from the appellate term. Applications to a justice of the Appellate Division of this Judicial Department under section 1344 of the Code of Civil Procedure for the allowance of an appeal to such Appellate Division from the determination of the justices designated to hear appeals from the Municipal Courts of the Boroughs of Brooklyn, Queens and Richmond, may be made upon 2 days' notice to the opposite party on any motion day within 2 months after such determination, unless the determination is made between June 15th and September 15th, in which event they may be made on the first motion day in October. A note of issue must be filed, and the cause put upon the motion calendar for the day for which it is noticed; upon the call of such calendar such application must be submitted without oral argument.

The papers upon which such application is made must contain a copy of the record in the Court below with the opinion rendered, if any, a concise statement of the grounds of alleged error, and proof of due service of the papers upon which the application is founded. Before such application can be entertained it must first have been made to the justices by whom the determination was made, in the manner provided by Rule 9 of the Appellate Term of the Supreme Court in the Second Judicial Department, and have been by them denied. If the appeal be allowed the papers must be printed as provided by Rule 41 of the General Rules of Practice, and placed on the enumerated calendar as required by Rule 9 of this Court.

The foregoing Rules made and promulgated to take effect February 1, 1919.
Dated December 30, 1918.

RULES OF APPELLATE DIVISION, THIRD DEPARTMENT

(As amended to February, 1922.)

Rule 1. Calendars of appeals from orders and compensation appeals. Appeals from orders shall be put upon the non-enumerated calendar. Appeals in compensation cases shall be put upon the compensation appeals calendar immediately following the nonenumerated calendar. The argument of both such classes of cases will be heard only upon the first day of a term and the days immediately following, until they shall all be disposed of, before the general calendar shall be taken up. But submission of such appeals will be received on any day during the term.

Appeals from orders and compensation appeals which are not upon the calendar when printed, may, after papers have been filed and served in compliance with General Rule No. 41, be added thereto upon filing a note of issue with the clerk five days before argument, and be noticed for argument for any Tuesday of the term upon the usual notice of eight days.

The argument of a case on the general calendar will not be required in any case before Wednesday of the first week.

Rule 2. Notices of original motions. Original motions in this court may be noticed for the first day of a term, or for the Tuesday of any subsequent week of the term. Rule 3. Preferred causes. A party who desires to have a cause heard as a preferred cause must in his note of issue state his claim for preference as provided in section 793 of the Code, or if an order giving the cause a preference has been made under that section, the note of issue must be accompanied with a copy of such order. The clerk, in making up the calendar, shall place such preferred causes at the head of the general calendar, indicating that they are preferred, and the class to which they belong.

Rule 4. Criminal appeals, preference. Appeals in criminal cases, brought after making up the calendar, or too late to be placed thereon, may be put upon the calendar at any time and brought to a hearing as preferred cases upon a notice of ten days to the adverse party, as provided by section 535 of the Criminal Code. A note of issue, with a statement of the day on which the cause is noticed to be heard, must be filed with the clerk at least five days before such date. The clerk shall place such causes on the calendar for the day for which they are so noticed, or upon which the cause shall be ordered by the court, or stipulated by the parties to be heard.

Rule 5. Day calendars, clerk's duty. The clerk shall prepare at 1 o'clock P. M. of each day for the next day a calendar of such number of causes as the court shal direct, including those undisposed of on the then day calendar, taken from the general calendar in their order thereon, subject to the provisions of Rule 6. Causes not disposed of on any day shall be placed at the head of the calendar for the next day until disposed of.

Rule 6. Day calendars, notice required, passing causes. Excepting the first twenty causes on the general calendar, no cause shall be placed upon the day calendar unless written notice is served on the clerk, by the attorney on one side or the other, that such cause is intended to be moved when called in its regular order, or unless it has been reserved for that day, by stipulation filed with the clerk. None of the first twenty causes on the general calendar shall be, reserved by stipulation without consent of the court, upon application made on the first day of the term, and any cause not placed on the day calendar in its order on the general calendar, will be regarded as passed for the term unless put over, or reserved as above provided.

Rule 7. Exchanging causes, effect. Causes must be argued when reached on the calendar. No exchange of cases will be allowed, unless both cases are ready for argument, and counsel intend to argue them at the same term at which the exchange be made, and when causes are exchanged each shall occupy the proper position of the other in date, on the same and every other subsequent calendar until heard. A preferred cause exchanged for one not preferred, or set down for a particular day, shall lose its preference; and no case will be called more than once during the same term; unless it shall have been reserved or postponed with the consent of the court.

Rule 8. Submitting causes. If both parties desire to submit, they may do so at any time during the term by delivering to the clerk the cases and points required by

General Rule 43, and either party may submit his points when the case is called, if the other party desires to argue orally on his part.

Rule 9. History of cause prefixed to points. The appellant, in addition to the statement required by Rule 41, shall prefix to his points a brief statement, showing in what court or before what officer or tribunal the action or proceeding was instituted, the relief sought, the defense or ground of opposition thereto, the result in the court or before the officer or tribunal in which the action or proceeding was commenced, and how the cause was brought into this court. If any opinion written in the case has been previously reported, he shall also state where it was so reported. If any opinion has been written which has not been reported, the party whose duty it is to furnish the papers shall submit a printed copy of such opinion to the court either in the record or with his brief.

Rule 10. Indorsements by counsel, causes deemed submitted. The counsel who argue a case shall indorse on the papers delivered to the justices their names and places of residence.

Every cause shall be deemed to be submitted to any justice, qualified to sit therein, who may be absent at the time of the argument, unless objection to such submission by counsel arguing such cause be then made.

Rule 11. Motions for reargument. Motions for reargument will only be heard on notice to the adverse party, stating briefly the ground upon which a reargument is asked, and such motion must be submitted on printed briefs stating concisely the points supposed to have been overlooked or misapprehended by the court with proper reference to the particular portion of the case, and the authorities relied upon.

Rule 12. Entering passed causes on subsequent calendars. If a cause is passed without being reserved, or put over by consent of the court, it shall be entered on all subsequent calendars as of the date when passed, and the party placing it on the calendar for a subsequent term, must state in his note of issue the date when it was passed. If he omits to do so, whereby the cause retains its priority on the calendar, the court, on the application of the adverse party, or on its own motion, may strike the cause from the calendar.

Rule 13. Terms designated for holiday. Whenever a Trial Term or Special Term of the Supreme Court, in this department, shall be designated to be held or opened on a day which is provided by law to be observed as a legal holiday, such court shall be opened and held on the next succeeding secular day.

Rule 14. Service of briefs. At least twenty days before a term of the Appellate Division at which a cause may be noticed for argument, the appellant, or relator, shall serve upon the attorney for the respondent three printed copies of his brief upon which he intends to rely upon the argument, with a reference to all the authorities which he intends to cite to the court. At least eight days before said term the respondent shall serve upon the attorney for the appellant, or relator, three printed copies of his brief with a reference to all the authorities which he intends to cite to the court. If the appellant, or relator, desires to present a brief in reply he may serve the same upon the attorney for the respondent at least three days before said term. Service under this rule may be made either personally or by mail, but service by mail shall not extend the time within which the answering brief may be served. This rule shall not apply to appeals from orders upon non-enumerated motions, nor to causes in which the time to file papers on appeal shall, under General Rule 41, expire within twenty days of the commencement of a term. Rule 15. Applications for admission to bar. Candidates for admission to the Bar may be sworn in at the opening of the court on any Thursday of the term, providing the necessary papers therefor shall have been filed with the clerk of the court on or before the Tuesday preceding.

An applicant for admission must present a certificate to this court signed by two members of the committee on character and fitness before one of whom he must appear personally. At the time of such appearance he must present to such member of the committee his certificate of the State Board of Law Examiners, and the affidavits of two practicing attorneys residing in the same Judicial District, as provided by Rule 1, of the General Rules of Practice. Such certificate of the committee on character and fitness, together with the certificate of the State Board of Law Exam

« PreviousContinue »