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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, ch. 3, tit. 2, § 27 (2 Edm. 291), and ch. 1, tit. 2, $33 32, and 34 (2 Edm. 179).

See rule 25 (Sup. Ct.).

§ 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Where an application is made to the court for judgment, it cannot be withdrawn, without the express permission of the court; and a subsequent application for judgment shall not be made, at a term held by another judge, except where the first application is so withdrawn; or where the directions given thereupon, require an act to be done, before judgment can be rendered; or where the fact of the former application is stated,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.

§ 778. Penalty for violating last two sections.

A person making an application, forbidden by the last two sections with knowledge of the previous applications, shall be punished by the court for a contempt.

From 2 R. S. 281, Part 3, ch. 3, tit. 2, § 28.

§ 779. 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 tase when the remedy of enforcement by such proceedings now exist. From ch. 390 of 1847, § 3; ch. 431 of 1876, § 12.

Am'd by ch. 416 of 1877; ch. 542 of 1879; ch. 397 of 1882, and ch. 181 of 884.

Now exists," this section went into effect Apr. 22, 1884; see § 14, sub. 3.

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. Time for doing any act; how computed. [Repealed.]

§ 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.

From Co. Proc. §§ 402 and 413.

Am'd by ch. 219 of 1890.

See rule 37 (Sup. Ct.).

§ 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. part of $405.

See rule 24 (Sup. Ct.).

§ 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.

§ 784. When time cannot be extended.

A court, or a judge, is not authorized to extend the time, fixed by law within which to commence an action; or to take an appeal; or to apply to continue an action, where a party thereto has died, or has incurred a disability; or the time fixed by the court, within which a supplemental complaint must be made, in order to continue an action; or an action is to abate, unless it is continued by the proper parties. A court, or a judge, cannot allow either of those acts to be done, after the expiration of the time fixed by law, or by the order, as the case may be, for doing it; except in a case specified in the next section. From Co. Proc. § 405.

§ 785. Qualification of last section.

Where a party, entitled to appeal from a judgment or order, or to move to set aside a final judgment for error in fact, dies, either before or after this chapter takes effect, and before the expiration of the time within which the appeal may be taken. or the motion made, the court may allow the appeal to be taken, or the motion to be made. by the heir. devisee, or personal representative of the decedent, at any time within four months after his death.

Am'd by ch. 416 of 1877.

§ 786. Orders in certain actions; how published. Where an action is brought for the collective benefit of the creditors of a person, or of an estate, or for the benefit of a person or persons, other than the plaintiff, who will come in and contribute to the expense of the action, notice of a direction of the court, contained in a judgment or order, requiring the creditors, or other person or persons to exhibit their demands, or otherwise to come in, must be published, once in each week, for at least three successive weeks, and as much longer as the court directs, in the newspaper, published at Albany, in which legal notices are required to be published, and in a newspaper, published in the county where the act is required to be done.

From 2 R. S. 183, Part 3, ch. 1, tit. 2, § 106 (2 Edm. 190).

§ 787. Time for publication of notice; how computed. The period of publication of a legal notice, in an action or special proceeding brought in a court either of record or not of record, or before a judge of such a court, must be computed, so as to exclude the first day of publication, and include the day, on which the act or event, of which notice is given, is to happen, or which completes the full period of publication.

From Co. Proc. 425.

§ 788. Time for doing any act; how computed. Repealed by Statutory Construction Law, ch. 677 of 1892. See 24, 25, 26, 27 and 28 of that act.

ARTICLE SECOND.

Preferred and Deferred Causes.

SEC. 789. Preference of certain actions by the people.

790. Id.; of criminal actions.

791. Id.; among civil actions.

792. Id.; in mandamus or prohibition.

793. When an order is necessary.

794. When cause passed, how placed upon the calendar. [Repealed.] 795. Note of issue to state time when passed. [Repealed.]

§ 789. Preference of certain actions by the people.

A trial, motion, appeal, or hearing, in an action by the people to recover money, funds. credits, or other property held or owned by the State, or held or owned, officially or otherwise, for. or in behalf of, a public or governmental interest, by a municipal or other public corporation, or by a board, officer, custodian, agency or agent of the State, or of a city, county, town, village, or other division, subdivision, department, or portion of the State, which the defendant has, without right. obtained, received, converted, or disposed of; or to recover damages, or other compensation, for so obtaining, receiving, paying, converting, or disposing of the same; or the aiding or abetting thereof; is entitled, on the application of the attorney-general. to a preference over any other business, at a term or sitting of any court of the State, irrespective of its place upon the calendar.

From ch. 48 of 1875. § 5; see rule 14 (Ct. App.).

See $3347, sub. 6.

§ 790. Id.; of criminal actions.

A criminal action, including an appeal or other proceeding in a criminal cause, is entitled, under the direction of the court, to preference in the trial or hearing thereof, over all civil actions, and special proceedings, except as prescribed in the last section.

§ 791. Id.; among civil actions.

Civil causes are entitled to preference among themselves, in the trial or hearing thereof, in the following order, next after the causes specified in the last section but one:

1. An action or special proceeding brought by or against the people of the state, or by or against any state officer or board of state officers as such where the attorney of the said people, state officer or board of state officers has given notice, at the time of service of notice of trial or argument, of a particular day in the term at which he will move it. If the action or special proceeding is not moved by said attorney for trial or argument on that day, or as soon thereafter in the same term as the court can hear it, the other party may then move the trial or argument: otherwise it shall not be moved out of its order at that term except by the special order of the court.

2. An action or special proceeding in which the city of New York. or a board of officers, exercising powers conferred by a statute for the protection of public health or public or private property, or for the prevention or punishment of violations of a statute relating to either of those subjects. or the commissioners of pilots in the city of New York, are parties; where a notice. similar to the notice prescribed in the last subdivision, has been served by their attorney, at the time of service of the notice of trial or argument. The provisions of the last subdivision, relating to moving the trial or argument, apply to a cause within this subdivision.

3. In the court of appeals or the supreme court an appeal taken by either party, in an action or special proceeding, other than as specified in subdivision first of this section, where the people of the State, or a board of State officers, are sole parties or a State officer is a sole party, plaintiff or defendant.

3a. In the court of appeals or the supreme court, an appeal taken by either party in an action or special proceeding from a judgment or order declaring a legislative enactment unconstitutional, is entitled on motion or the appellant, to a preference over any business irrespective of its place on the calendar, except as to preferences provided for in sections seven hundred and eighty-nine, seven hundred and ninety and the preceding subdivisions of this section.

4. In the court of appeals, an action, a party to which has died, pending the action, where the pendency of the action prevents a final settlement of the estate of the deceased party.

5. In any court, an action or special proceeding in which an executor or an administrator, or testamentary trustee, or an infant or a trustee of a fund for the support and maintenance of an infant, or a receiver appointed by the court, or a trustee in bankruptcy, or a general assignee for the benefit of creditors, or the committee of a lunatic or an idiot, or a creditor of a deceased insolvent debtor suing for the benefit of himself and other creditors interested in the estate or property of such deceased debtor where a right of action is given by express provision of law. is the sole plaintiff or sole defendant; an action or special proceeding for the construction of, or an adjudication upon or to determine the validity of the probate of a will, in which the administrator, with the will annexed, or the executor of the will is joined, as plaintiff or defendant, with one or more other parties, and an appeal from the judgments or decision in any of the foregoing actions or proceedings and in the court of appeals or the supreme court, an appeal from the decree or decision of a surrogate's court, determining a will to be valid and admitting it to probate, or determining an instrument offered for probate as a will to be invalid or not entitled to probate as such, or granting general letters of administration or directing the distribution of a fund or payment of money by an executor or an administrator in pursuance of an order or decree made on an intermediate, final or judicial accounting or otherwise by an administrator or an executor. 6. An action for dower, where the plaintiff makes proof by affidavit. to the satisfaction of the court, or a judge thereof, that she has no sufficient means of support, aside from the estate in controversy; an action for the partition of real property.

7. An action against a corporation or joint-stock association, issuing bank notes or any kind of paper credits to circulate as money, or by or against a receiver of such corporation or association. An action in which a county cf town is sole plaintiff or defendant.

8. An action against a corporation founded upon a note, or other evidence of debt for the absolute payment of money. An action upon an undertaking given upon an appeal to the court of appeals, or to stav the execution on an appeal to the court of appeals.

9. An action against a sheriff, in his official capacity, or an action by a sheriff or late sheriff, to recover for a breach of the obligation of a bond or bonds, or an instrument or instruments of indemnity, or an undertaking or undertakings given to him in his official capacity.

10. A cause entitled to preference, by the general rules of practice, or by the special order of the court in the particular case. 11. In any court an action for libel or slander.

12. In the court of appeals, all appeals from judgment of affirmance rendered by the appellate division of the supreme court in cases enumerated in subdivision two of section one hundred and ninety-one of this act, where the decision of the appellate division has been unanimous and an appeal has been taken or allowed as in said subdivision of said section provided.

13. An action for aosolute divorce in which an order has been made granting temporary alimony.

Where an issue of law and an issue of fact, or two or more other questions of

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