different natures, come before the same term of the court for trial or hearing the preference given by this section affects only the order, in which the issues or questions of the same nature are to be disposed of.

Am'd by ch. 416 of 1877; chs. 163 and 542 of 1879; ch. 397 of 1882; ch. 301 of 1883; ch. 402 of 1884: ch. 120 of 1887; ch. 795 of 1895; ch. 136 of 1898; ch. 58 of 1879, and ch. 144 of 1900.

Subd. 11 added by ch. 126 of 1808.

Subd. 12 added by ch. 355 of 1800.

Subd. 3a added by ch. 585 of 1800.

Subd. 13 added by ch. 357 of 1902. In effect Sept. 1, 1902.
See rule 14 (Ct. App.).

§ 792. Id.; in mandamus or prohibition.

Where a writ of mandamus or of prohibition has been issued, from the appellate division of the supreme court, to a special term, or a judge of the same court. the cause may, in the discretion of the court, or, where an appeal is taken therein to the court of appeals, in the discretion of that court, be preferred over any of the causes specified in the last section.

From ch. 70 of 1873, parts of §§ 1 and 2.
Am'd by ch. 946 of 1895.

§ 793. When an order is necessary.

Where the right to a preference depends upon facts which do not appear in the pleadings or other papers upon which the cause is to be tried or heard, the party desiring a preference must procure an order therefor from the court or a judge thereof, upon notice to the adverse party. A copy of the order must be served with or before the notice of trial or argument may be vacated by the judge or judges holding the term at which the Such an order is not appealable, but it preferred cause is noticed for trial or hearing, or by such other justice. or at such other term of court, or at such other time as shall be prescribed by the general or special rules of practice. But a preliminary order is not requisite in a case embraced within subdivision first or second of the last section but one, and the order in a case embraced within subdivision six thereof may be made ex parte, and is conclusive. Where no order is required, a claim for preference. specifying the provision of law under which the claim is made, may be inserted in the note of issue to be filed with the clerk, and it shall then be the duty of such clerk to place such cause in its proper place among the preferred causes at the head of the calendar; except that in the counties of New York, Kings, Queens and Erie, and the seventh judicial district, no action or special proceeding shall be placed as a preferred cause upon the calendar of any circuit court or trial term or special term of any court as herein provided, but the party desiring a preference of any cause shall serve upon the opposite party, with his notice of trial, a notice that an application will be made to the court at the opening thereof, or to such justice or other term of court or at such other time as shall be prescribed by the general or special rules of practice. for leave to move the same as a preferred cause, and if the right to a preference depends upon facts which do not appear in the pleadings or other papers upon which the case is to be tried the notice must be accompanied by an affidavit showing such facts. In said counties of New York. Kings, Queens and Erie and in the seventh judicial district, the application for a preference shall be made at the opening of the court, or to such justice or other term of or at sich ether time as shall be prescribed by the general or special ruies of practice, and if it shall appear that the cause is entitled to a preference and is intended to be moved for trial at or for the term for which the application is made, the court or justice may direct that it shall be so heard.

court

Am'd by ch. 542 of 1879; ch. 497 of 1888; chs. 410 and 946 of 1895; ch. 140 of 1896 and ch. 172 of 1900.

§ 794. When cause passed, how placed upon the calendar.

Repealed by ch. 946 of 1895.

§ 795. Note of issue to state time when passed. Repealed by ch. 946 of 1895.

ARTICLE THIRD.

Service of Papers.

SEC. 796. Paper may be served personally.

797. Other modes of service.

798. Double time when served through the post-office.

799. When paper to be served on attorney; when service not required.
800. When service may be made on clerk, for non-resident.
801. Service through branch post-office in New York city.
802. This article not applicable to service of summons, etc.

§ 796. Paper may be served personally.

A notice or other paper in an action may be served on a party or an attorney either by delivering it to him personally or in the manner prescribed in the next section. All papers so served or required to be filed in an action, shall be plainly and legibly written or printed in black ink upon durable paper of good material, and, if imprinted by typewriter, such paper shall be of linen quality equal in weight to sixteen pounds to the double cap ream, of seventeen by twenty-eight inches in size, and service or filing of papers printed or written upon such paper with such ink shall be deemed a compliance with the terms of this section. The transcribed minutes of a stenographer taken in any civil or criminal action, or in any hearing or special proceeding, civil or criminal, shall be written or type-written on paper of the size hereinafter specified, and all cases, briefs, points or other papers required or used on an appeal from any judgment, determination or order of any court or board shall be printed (when required to be printed by the rules of any court) on paper of a uniform size, as follows: The paper must be ten and one-half inches by eight inches, and bound on the edge of the greatest length.

From Co. Proc. § 408.

Am'd by ch. 496 of 1888.
See rule 19 (Sup. Ct.).

See rule 5 (Ct. App.).

§ 797. Other modes of service.

Where the service is not personal, it may be made as follows:

1. Upon a party or an attorney, through the post-office, by depositing the paper, properly inclosed in a post-paid wrapper, in the postoffice or in any post-office box regularly maintained by the government of the United States and under the care of the post-office of the party, or the attorney serving it, directed to the person to be served at the address, within the state, designated by him for that purpose. upon the preceding papers in the action; or, where he has not made such a designation, at his place of residence, or the place where he keeps an office, according to the best information which can conveniently be obtained concerning the same.

2. Upon an attorney, during his absence from his office, by leaving the paper with his partner or clerk therein, or with a person having charge thereof.

3. Upon an attorney, if there is no person in charge of his office, and the service is made between six o'clock in the morning and nine o'clock in the evening. either by leaving it, in a conspicuous place in his office, or by depositing it. inclosed in a sealed wrapper, directed to him in his office letter-box; or, if the office is not open so as to admit of leaving the paper therein, and there is no office letter-box, by leaving it at his residence, within the state, with a person of suitable age and discretion.

4. Upon a party, by leaving the paper at his residence within the state, between six o'clock in the morning and nine o'clock in the evening, with a person of suitable age and discretion.

From Co. Proc. §§ 409, 410, 411.

Am'd by ch. 542 of 1879, and ch. 40 of 1897.

§ 798. Double time when served through the post-office. Where it is prescribed in this act, or in the general rules of practice. that a notice must be given, or a paper must be served within a specified time, before an act is to be done; or that the adverse party has a specified time, after notice or service, within which to do an act; if service is made through the post-office, the time so required or allowed is double the time specified; except that service of notice of trial may be made, through the post-office, not less than sixteen days before the day of trial, including the day of service.

From Co. Proc. § 412.

§ 799. When paper to be served on attorney; when service not required.

Where a party has appeared, a notice or other paper required to be served in an action must be served upon his attorney. If a defendant has not appeared, service of a notice or other paper, in the ordinary proceedings in the action. need not be made upon him, unless he is actually confined in jail, for want of bail.

From Co. Proc. §§ 414, 417.

§ 800. When service may be made on clerk, for non-resident.

Where a party to an action, who has appeared in person, resides without the state, or his residence cannot. with reasonable diligence, be ascertained. and he has not designated an address within the state, upon the preceding papers, service of a paper upon him may be made, by serving it on the clerk.

From Co. Proc. § 415.

§ 801. Service through branch post-office in New York city.

In the city of New York where a paper is served, or a return is riade through the post-office, the deposit of the package in a branch post-office has the same effect, as a deposit in the general or principal post-office of that city.

See 1081, Consol. Act.

§ 802. This article not applicable to service of summons, etc.

This article does not apply to the service of a summons, or other process or of a paper to bring a party into contempt; or to a case where the mode of service is specially prescribed by law.

From Co. Proc. § 418 and part of § 408.

"Service of summons," see § 425.

See also § 2274.

ARTICLE FOURTH.

Discovery of Books and Papers.

SEC. 803. Court may direct discovery of books, etc.

804. Rules to prescribe the cases, etc.

805. Petition for discovery, and order thereupon.
806. Order, when and by whom vacated.

807. Proceedings upon the return of the order.
808. Penalty for disobedience.

809. Effect of papers, etc., produced.

§ 803. Court may direct discovery of books, etc.

A court of record other than a justices' court in a city, has power to compel a party to an action pending therein, to produce and discover, or to give to the other party, an inspection and copy, or permission to take a copy, of a book, document, or other paper, in his possession or under his control, relating to the merits of the action, or of the defence therein.

From 2 R. S. 199, Part 3, ch. 1, tit. 3, § 21; Co. Proc. § 388; and ch. 38 of 1841.

§ 804. Rules to prescribe the cases, etc.

The general rules of practice must prescribe the cases, in which a discovery or inspection may be so compelled, and the proceedings for that purpose, where the same are not prescribed in this act.

From 2 R. S. 199, Part 3, ch. 1, tit. 3, § 22.

See rule 14 (Sup. Ct.).

§ 805. Petition for discovery and order thereupon. To entitle a party to procure such a discovery or inspection, he must present a petition, praying therefor, and verified by affidavit, to the court, or to a judge authorized to make an order in the action; upon which an order may be made, directing the party, against whom the discovery or inspection is sought, to allow it, or, in default thereof, to show cause before the court, at a time and place, and upon a notice, therein specified, why the prayer of the petition should not be granted; and, if necessary or proper that his proceedings be stayed until the hearing of the application, although the stay exceeds twenty days.

From Id., §§ 23 and 25.

See rules 14, 15, 16 (Sup. Ct.).

§ 806. Order, when and by whom vacated.

An order, made as prescribed in the last section, may be vacated by the judge who granted it, or by the court, upon satisfactory proof, by affidavit.

1. That it ought not to have been granted, or that it has been complied with; or,

2. That the party required to make the discovery, or permit the inspection, has not the possession or control of the book, document or other paper, directed to be produced or inspected.

From Id., § 24.