RULES OF THE COURT OF APPEALS.

(Adopted October 22, 1894; as amended to June, 1911.)

RULE I

Appellant to file return; effect of omission. If the appellant shall not cause the proper return to be made and filed with the clerk of this court within the time prescribed by law (Code Civil Pro., § 1315), the respondent may, by notice in writing, require such return to be filed within ten days after the service of the notice, and if the return be not filed in pursuance of such notice, the appellant shall be deemed to have waived the appeal. On an affidavit proving that the appeal was perfected, and the service of such notice, and a certificate of the clerk that no return has been filed, the respondent may enter an order with the clerk dismissing the appeal for want of prosecution, with costs, and the court below may thereupon proceed as though there had been no appeal.

RULE II.

Further return may be ordered. — If the return made by the clerk of the court below shall be defective, either party may, on an affidavit, specifying the defect, and on notice to the opposite party, apply to one of the judges of this court for an order, that the clerk make a further return without delay.

RULE III.

Attorneys and guardians below to continue to act. - The attorneys and guardians ad litem of the respective parties in the court below shall be deemed the attorneys and guardians of the same parties respectively, in this court, until others shall be retained or appointed, and notice thereof shall be served on the adverse party.

RULE IV.

Appellant to make a case; its form. In all calendar causes a case shall be made by the appellant, which shall consist of a copy of the return, and the reasons of the court below for its judgment, or an affidavit that the same cannot be procured, together with an index to the pleadings, exhibits, depositions and other principal matters. Every opinion in the cause at Special Term, as well as at the Appellate Division of the Supreme Court, relating to the questions involved in the appeal, is included by the foregoing provision.

RULE V.

Cases and points to be printed; mode of printing.- All cases and points, and all other papers furnished to the court in calendar causes, shall be printed on white paper, as provided in section 796 of the Code of Civil Procedure, and, if bound, the covers shall be of light-colored paper, which can be legibly written upon. The

Small pica, folio, numbering from the commencement to the end of the case, shall be printed on the outer margin of the page. leaded, or ten point leaded with four to pica leads, is the smallest letter and most compact mode of composition which is allowed. No charge for printing the papers mentioned in this rule shall be allowed as a disbursement in a cause; unless the requirements of the preceding sentence shall be shown, by affidavit, to have been complied with in all papers printed.

RULE VI.

Appellant to serve copies of case; effect of his default. Within forty days after the appeal is perfected, the appellant shall serve three printed copies of the case on the attorney of the adverse party. If he fail to do so, the respondent may, by notice in writing, require the service of such copies within ten days after service of the notice, and, if the copies be not served in pursuance of such notice, the appellant shall be deemed to have waived the appeal; and on an affidavit proving the default and the service of such notice, the respondent may enter an order with the clerk dismissing the appeal for want of prosecution, with costs, and the court below may thereupon proceed as though there had been no appeal.

RULE VII.

At least twenty days before a Copies of cases and points. cause is placed on the day calendar, the appellant shall file with the clerk eighteen printed copies of the case, and shall at the same time file with the clerk eighteen printed copies, and serve on the attorney or counsel for the respondent three printed copies, of the points to be relied on by him, with a reference to the authorities to be cited. Within ten days after such service, the respondent shall file with the clerk eighteen printed copies, and serve on the attorney or counsel for the appellant three printed copies, of the points to be relied on by him, with a reference to the authorities to be cited.

If the appellant desires to present points or authorities in reply, he shall file with the clerk eighteen printed copies thereof and serve three printed copies on the attorney or counsel for the respondent, within five days after receipt of the respondent's points; and no supplemental points will be allowed from either side unless especially requested by the court.

No points will be received by the court on argument or submission, unless they shall have been filed and served as above provided; except that in appeals under Rule XI, noticed for the first Monday of a session, and in causes upon a new general calendar to be heard during the first two weeks of any session at which such new calendar is taken up, the parties shall file the printed cases and file and serve, or exchange, the printed points, at least two days before the commencement of the session.

The cases and points filed with the clerk shall be disposed of as follows: One copy shall be furnished to each of the judges; one copy shall be kept by the clerk, with the records of the court; one copy shall be deposited in the State Library; one copy shall be deposited in each branch of the library of the Court of Appeals; one copy shall be deposited in the library of the New York Law Institute; one copy shall be deposited in the Law Library of Brooklyn one copy shall be deposited in the Law Library of the Eighth Judicial District, and one copy shall be delivered to the

RULE VIII.

Statement and discussion of facts, — In all causes each party shall briefly state upon his printed points, in a separate form, the leading facts which he deems established. with a reference to the folios where the evidence of such facts may be found. And the court will not hear an extended discussion upon any mere question of fact.

Every cause shall be deemed to be submitted to such judges as may be absent at the time of the argument, unless objection to such submission by counsel arguing the cause be then made.

RULE IX.

Criminal causes. — making up the calendar, or too late to be placed on said calendar, Appeals in criminal causes brought after may be put upon the calendar at any time, and brought on for a hearing as preferred causes, upon a notice of ten days; and it shall be the duty of the clerk to place such causes on the calendar for the day for which they shall be noticed or upon which the cause shall be ordered by the court, or stipulated by the parties, to be heard.

RULE X.

Submission and reservation of causes. — received upon submission, until reached in the regular call of the calendar. ·Causes will not be No reservation will be made of any of the first eight causes, unless on account of sickness, or of an engagement elsewhere in the actual trial, or argument, of another cause, commenced before the term of this court, or of other inevitable necessity, to be shown by affidavit. Other causes may be reserved upon reasonable cause shown, or by stipulation of parties filed with the clerk; but no cause shall be so reserved by stipulation after the same has been placed upon the day calendar,

Causes reserved for a day certain by stipulation, when in order to be called, have priority among each other according to the time of filing the stipulations with the clerk, and shall follow next in order the undisposed of causes of the calendar for the day previous. Default may be taken in them.

No reserved cause, whether reserved generally or for a particular day, will be called before its number is reached on the regular call of the calendar.

RULE XI.

Motions and appeals from orders. final orders in special proceedings, from interlocutory judgments and from orders in actions and special proceedings, certified to this Motions, appeals from court by the Appellate Division of the Supreme Court, except orders granting a new trial, may be noticed for, and will be heard on, the first Monday of each session of the court, before taking up the general calendar. this rule must contain the claim that the appeal is one entitled Notices of argument of appeals within to be heard under Rule XI of the Court of Appeals.

Motions will be heard orally on the first Monday of a session only but they may be submitted without oral argument on any Monday when the court is in session: provided they are submitted by both sides and the papers are filed with the clerk on or before the preceding Friday. If either party demands an oral argument of a motion noticed for any other than the first Monday of a session. the motion will go over to the first Monday of the succeeding session.

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Where notice has been given of a motion, if no one shall appear to oppose, it will be granted as of course.

If a motion be not made on the day for which it has been noticed, the opposing party will be entitled, on applying to the court at the close of the motions for that day, to a rule denying the motion, with costs.

RULE XII.

Call of calendar. Eight causes only will be called on any day; but, after such call, causes ready on both sides will be heard in their order. Any cause which is regularly called and passed, without postponement by the court for good cause shown at the time of the call, shall be stricken from the calendar.

Causes upon the calendar may be exchanged one for another, as of course, on filing with the clerk a note of the proposed exchange, with the numbers of the causes, signed by the respective attorneys or counsel. Upon all subsequent calendars, cach of said causes will take the place due to the date of the filing of the return in the other.

In like manner, a cause not upon the calendar, in which an appeal to this court has been perfected and the return duly filed with the clerk, may be exchanged, as of course, for another cause upon the calendar, on filing with the clerk a note of the proposed exchange, with the number of the cause on the calendar, and the date of filing return in the cause not upon the calendar, signed by the respective attorneys or counsel, and, also, a stipulation of the attorneys or counsel in the cause not on the calendar setting down the same for argument in place of the calendar cause when reached, with the same effect as if duly noticed.

Upon all subsequent calendars, each of said causes will take the place due to the date of filing the return in the other.

RULE XIII.

Time of argument. In the argument of a cause not more than two hours shall be occupied by counsel on either side, except by the express permission of the court.

In the argument of an appeal within Rule XI not more than thirty minutes shall be occupied by the appellant's counsel, nor more than twenty-five minutes by the respondent's counsel; unless express permission be given by the court and the cause placed at the foot of the order calendar.

RULE XIV.

Preferred causes. — No causes are entitled to any preference upon the calendar except such as is given by law or the special order of the court.

Any party claiming a preference must so state in his notice of argument to the opposite party and to the clerk; and he must also state the ground of such preference, so as to show to which of the preferred classes the cause belongs.

A preferred cause being once passed loses its preference.

RULE XV.

Defaults. — Judgments of reversal by default will not be allowed. When a cause is called in its order on the calendar, if the appellant fails to appear and furnish the court with the papers required, and argue or submit his cause, judgment of affirmance by default will be ordered on motion of the respondent. If the ap

pellant only appears, he may either argue or submit the cause

When any cause shall be regularly called for argument, and no other disposition shall be made thereof, the appeal shall be dismissed, without costs, and an order shall be entered accordingly, which shall be absolute unless upon application made and good cause shown, upon notice to the opposite party within ten days, if the court is in session, and if not, on the first motion day of the next session, the court shall revoke said order and restore said appeal.

RULE XVI.

Remittitur.

-The remittitur shall contain a copy of the judgment of this court and the return made by the clerk below, and shall be sealed with the seal and signed by the clerk of this court.

RULE XVII.

Affirmance by default. When a judgment or order shall be affirmed by the default of the appellant, the remittitur shall not be sent to the court below, unless this court shall otherwise direct. until ten days after notice of the affirmance shall have been served by the attorney for the respondent on the attorney for the appellant and proof thereof filed with the clerk. Service of the notice shall be proved to the clerk by affidavit, or by the written admission of the attorney on whom it was served.

RULE XVIII.

Enlarging time; revoking orders. The time prescribed by these rules for doing any act may be enlarged by the court or by any of the judges thereof; and any of the judges may make orders to stay proceedings, which, when served with papers and notice of motion, shall stay the proceedings according to the terms of the order. Any order may be revoked or modified by the judge who made it; or, in case of his absence or inability to act, by any of the other judges.

RULE XIX.

Calendars. When a new calendar is ordered by the court, the clerk shall place thereon all causes in which notices of argument, with proof or admission of service, have been filed in his office; and, also, if ordered by the court, all other causes in which the returns have been filed in his office; and the causes so put on the calendar by the direction of the court will be heard in their order as if regularly noticed.

RULE XX.

Motions for reargument. - Motions for reargument must be submitted on printed briefs, without oral argument, on notice to the adverse party, stating briefly the ground upon which a reargument is asked, and the points supposed to have been overlooked or misapprehended by the court, with proper reference to the particular portion of the case and to the authorities relied upon.

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