an application for the relief which would properly be prayed for in the petition; and in like manner a proceeding which is required by statute to be instituted by affidavit may be instituted by petition. The party making a motion may, in the notice thereof, specify one or more kinds of relief in the alternative or otherwise, and the adverse party must, where at least eight days' notice of the motion shall be given, at least one day prior to the time at which the motion is noticed to be heard, serve upon the attorney for the moving party copies of the affidavits and papers which he expects to read in opposition to the motion; he may, at least three days prior to the time at which the motion is noticed to be heard, serve upon the attorney for the moving party a notice, with or without affidavits or other papers in support thereof, specifying any kind or kinds of relief in the alternative or otherwise to which he claims to be entitled in the action whether the relief so asked for be responsive or not to the relief asked for by the moving party. Upon the hearing of a motion relief shall not be denied to any party because of defects or insufficiencies in the moving papers which can be cured upon the hearing or before the entry of the order thereon, but the court or judge shall direct that such defects or insufficiencies be cured or supplied forthwith, and shall proceed to hear and consider the motion, or may direct the motion to stand over to be heard at a subsequent time or place. In either case it may award against the party in whose moving papers or application such defect or insufficiency appears, costs in favor of the adverse party. Whenever a motion is made to set aside or vacate an order, judgment or decree or any paper filed or proceeding taken, because of technical defects therein, or because of defects or insufficiencies in the papers or proceedings upon which it was made or entered and such defects or insufficiencies can, without prejudice to intervening rights, be cured or supplied, it shall be the duty of the court to direct upon the hearing of such motion, that such defects or insufficiencies in the order, judgment or decree, or in the papers or proceedings, be cured or supplied nunc pro tunc, awarding against the party in whose order, judgment or decree, or in whose papers or proceedings such defects or insufficiencies appear, costs in favor of the adverse party. The pleadings in an action shall at all times when a motion is made therein be deemed to be before the court although not specifically referred to in the notice of motion.

From Id., § 401, subd. 1. Am'd by L. 1900, c. 147; L. 1911, c. 763 (in effect Sept. 1, 1911).

$769. [Am'd, 1879.] Motions in supreme court; where to be

A motion, upon notice, in an action in the supreme court must be made within the judicial district in which the action is triable or in a county adjoining that in which it is triable; except that where it is triable in the first judicial district, the motion must be made in that district; and a motion, upon notice, cannot be made in that district in an action triable elsewhere. But this section does not apply to a case where it is specially prescribed by law that a motion may be made in the county, where the applicant, or other person to be affected thereby, or the attorney, resides.

From Co. Proc., § 401, subd. 4.

Am'd by L. 1879, c. 542.

§ 770. Motions in New-York city.

In the first judicial district, a motion which elsewhere must be made in court, may be made to a judge out of court, except for a new trial on the merits.

From Co. Proc., § 401, subd. 2.

§ 771. In absence of judge, motion may be transferred to

another judge. A new Rule leg

Where notice of a motion is given, or an order to show cause is returnable, before a judge, out of court, who, at the time fixed for the motion, is or will be absent, or 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 it might have been originally made.

From Co. Proc., § 404.

§ 772. [Am'd, 1895.] What judges may make orders out 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 judge is not specially designated by law, it may be made by any judge 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.

From Id., § 401 (subd. 3) and § 324. Am'd by L. 1895, c. 946 (in effect Jan. 1, 1896).

§ 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. New.

§ 774. [Am'd, 1877.] Review of order made by a judge of another court.

An order, made by a judge of a court, other than the court 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 which the action is pending.

From Co. Proc., § 403, last clause. Am'd by L. 1877, c. 416.

§ 775. [Am'd, 1877.] When stay of proceedings not to exceed twenty days.

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 appealed 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.

From Co. Proc., § 401, subd. 6. Am'd by L. 1877, c. 416.

§ 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 reference 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 thereupon 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.

From 2 R. S. 281 (Part 3, c. 3, tit. 2), § 27; Id., 173 (Part 3, c. 1, tit. 2), §§ 32, 33, 34.

§ 777. Id.; as to application for judgment.

Where an application is made to the court for judgment, it cannot be withdrawn, without the express permission of the court; and a subsequent application for judgment shall not be made, at a term held by another judge, except where the first application is so withdrawn; or where the directions, given 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.

New.

§ 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.

From 2 R. S. 281 (Part 3, c. 3, tit. 2), § 28.

§ 779. [Am'd, 1877, 1879, 1882, 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 201a

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 exists.'

From L. 1847, c. 390, § 3; L. 1876, c. 431, § 12. Am'd by L. 1877, c. 416; L. 1879, c. 542; L. 1882, c. 397; L. 1884, c. 181.

This last sentence was added by the amendment of 1884 (L. 1884, c. 181, ir effect April 22, 1884). This date becomes important by reason of the words "now exists" with which the sentence ends. (See § 14, subd. 3, ante).

201b

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.
6. Other matters.

ARTICLE FIRST.

General regulations respecting time.

Sec. 780. Notice of motion, to be eight days.
781. How time enlarged, before its expiration.
782. Copy of affidavit must be served.
783. Relief, after time has expired.
784. When time cannot be extended.

785. Qualification of last section.

786. Orders in certain actions; how published.

787. Time for publication of notice; how computed.
788. [Repealed.]

§ 780. [Am'd, 1890.] 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.

From Co. Proc., §§ 402, 403. Am'd by L. 1890, c. 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.

From Co. Proc., § 405.

§ 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.

From 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.

From Co. Proc., § 174.