service upon him of the notice of appeal; upon failure by the appellant to procure compliance with the above requirements, the respondent may move upon three days' notice on any day of the term to dismiss the appeal, and such appeal shall be dismissed unless the justices assigned to hear such appeal, or one of them, for good cause shown, shall extend the time.

NOTES

The Appellate Term will not entertain a motion to dismiss an appeal from a judgment of the City Court, until twenty (20) days after the settlement of the case, upon appeal. Shubert Theatrical Co. v. Zeigfeld, 113 N. Y. Supp., 801.

The remedy of the respondent, if the appellant fails to have the case on appeal settled and signed by the trial justice is to move in that court for an order declaring that the appellant has waived his right thereto (Rule 33, General Rules of Practice).

If such an order is granted the Appellate Term will dismiss the appeal unless the appellant elects to have the appeal heard upon the judgment roll only. True v. Sibley, 61 N. Y. St. Rep., 20; 29 N. Y. Supp., 704.

Appeals from judgments must be settled and allowed by the trial justice, or they will not be filed by the clerk of the Appellate Term, and the consent of the parties that a case may be settled, cannot be substituted for that of the trial justice. Middleman v. Stevenson et al., 113 Supp., 762.

Returns on appeal from orders of the Municipal Court must be accompanied by a certificate of the clerk that the return contains copies of all the affidavits and other papers recited in the order appealed from.

After a case is upon the calendar, the respondent cannot move to dismiss for failure to prosecute, or for failure to file and serve briefs, unless he has served and filed a notice of argument.

The order on decisions on motions is filed as soon as the decision upon the motion is made. When orders are granted as a favor upon conditions the party favored must not wait for service upon him of a copy of the order.

Ex parte orders, dismissing appeals upon consent, or for failure to comply with a former order, when handed up for signature, in case the appeal is upon the calendar, must be accompanied by a copy for certification by the Clerk to accompany the return to the Lower Courts.

Rule 4. Returns on appeals. Returns upon appeals from judgments, final orders and orders of the Municipal Court in which a case is made and settled shall consist of true copies of the originals to be furnished by the appellant, typewritten on suitable paper, eight (8) inches wide and ten and one-half (10 1-2) inches long, numbered at the bottom of each page, fastened at the left-hand edge, bound with a substantial cover and appropriately indexed, in the following order:

A statement showing the court and district thereof from which the appeal is taken, the date of entry of the judgment, final order or order appealed from, the date of the beginning of the action and of service of the respective pleadings; the names of the original parties in full and any change in the parties if such has taken place; the names of the attorneys appearing for the respective parties on the appeal. The notice of appeal, the summons, the complaint, the answer, the bill of particulars, if any, any intermediate order and the papers upon which the same is based, if brought up for review by the notice of appeal. The judgment, final order or order appealed from, the original transcript of the stenographer's minutes, which shail be transcribed in conformity with the standard page adopted by the Society of Certified Shorthand Reporters, on paper of the size above mentioned, the lines thereon to be consecutively numbered on the left-hand margin; copies of the exhibits in the order in which they are marked, unless they are voluminous and only a part of their contents are material, in which case the parties may stipulate or the justice below may upon notice settle a statement respecting the same or the parts thereof to be returned upon appeal; the opinion of the court. or a statement that no opinion was rendered; the settlement and allowance of the case by the trial justice and the certificate of the clerk, which certificate may be made upon the stipulation of the respective parties or their attorneys.

Returns upon appeals from judgments, final orders or orders in which no case is settled shall consist of true copies of all papers used upon the hearing or recited in the order appealed from, to be furnished by the appellant, typewritten in the manner above indicated in the following order:

A statement showing the court and district thereof from which the appeal is taken, the nature of the judgment, final order or order appealed from and the date of entry of the same; the names of the respective parties and the attorneys appearing on the appeal. The notice of appeal; the judgment, final order or order appealed from; in an appeal from a judgment or final order the papers upon which the same is based; in an appeal from an order, the notice of motion or order to show cause; the moving affidavits, the opposing affidavits, the opinion of the court or a statement that no opinion was rendered, the certificate of the clerk, which may be made upon the stipulation of the parties or their attorneys.

NOTES

There should be an order entered, which should recite the papers used upon the hearing, or a short form order referring to the papers used by number. Sec. 767, C. C. P. Solomon v. Rothbaum, L. J., Jan. 19th, 1916, citing Kirchner v. Abbotts Bakeries, 156 Supp., 107.

All exhibits contained in case should have a proper notation thereon of the page of record at which they were offered in evidence and the index should also show the page at which they were offered.

Rule 5. Cases and points. The cases and points and all other papers furnished to the Appellate Term on an appeal from the City Court shall be printed as provided for in Rule 43 of the General Rules of Practice. The points on an appeal from the Municipal Court shall be printed as therein provided or typewritten. In every case on appeal from the City Court or the Municipal Court, the appellant must, on or before the Monday preceding the first day of the term at which the appeal is noticed for argument, file with the clerk of the Appellate Term the requisite number of copies of his points to be used upon the hearing, indicating thereon the number of the appeal on the calendar published in the Law Journal, and shall also, on or before the Monday preceding the first day of said term, serve a copy of said points upon the attorney for the respondent. Upon failure so to do the appeal may, when called for argument in its regular order on the calendar, be dismissed or the hearing thereof adjourned to the next term, as the court may determine. Not later than twelve o'clock noon on the Saturday preceding the first day of the term the respondent must serve a copy of his points upon the attorney for the appellant or upon the appellant's counsel, and file with the clerk the requisite number of copies thereof to be used upon the argument, said copies also to contain the number of the case upon the calendar as published in the Law Journal. No further time for filing points will be granted and no other points will be received or considered unless the court shall by its own motion direct further points to be submitted.

No appeal will be heard or received on submission unless it has been noticed for argument (as required by Sec. 780, C. C. P.), and proof of service thereof filed with the clerk of the Appellate Term on or before the Monday preceding the first day of the term. All appeals must be heard or submitted when regularly called for argument, unless the court, for cause shown, shall adjourn the hearing until a subsequent term; and no appeals shall be submitted without argument unless the points have been filed and served as hereinbefore provided. In the argument of an appeal from an order or from a judgment of the Municipal Court not more than fifteen minutes shall be occupied by counsel on either side; and in the argument of an appeal from a judgment of the City Court not more than thirty minutes shall be occupied by counsel on either side, except by express permission of the court.

NOTES

Ten (10) copies of the briefs upon appeal from judgments and orders of the City Court must be filed with the Clerk of the Appellate Term. In appeals from judgments and orders of the Municipal Court, three (3) copies of the briefs are required.

Briefs upon an appeal from the Municipal Court need not be printed but may be typewritten. If the respondent has served and filed a notice of argument and the appellant has neither served nor filed a notice of argument and briefs, the appeal will be dismissed, leaving the appellant to move to open and excuse his default, and to restore the appeal, he being thereby subjected, if such relief is granted to payment of costs of dismissal and costs of the motion to open his default. A motion to dismiss the appeal for failure to file briefs will not be entertained unless the respondent has served and filed a notice of argument. If both parties have served and filed a notice of argument, and the appellant has failed to file briefs, the respondent may, upon the call of the calendar, move to dismiss the appeal and unless the Court

then permits the appellant to serve his briefs, the appeal will be dismissed, or put over the term; in the last event, costs will be imposed.

Reply briefs are not permitted under the rule unless the same are requested by the Court. If the appellant is allowed to file brief it is usually upon condition that he submit the appeal without argument.

Rule 6. Leave to appeal to appellate term. Applications to a justice of the Appellate Term for leave to appeal from an order sustaining or overruling an objection taken to a pleading as prescribed in sections eighty-eight and eighty-nine of the Municipal Court Code must be made within five days after denial of an application for such leave by the trial justice upon any day during the term upon three days' notice to the opposite party or parties. The papers upon which such application is made must contain a copy of the pleadings, the order entered in the court below and the papers recited therein; a concise statement of the grounds of alleged error, a copy of the opinion of the justice below, if any, and proof of due service of the papers upon which the application is founded.

Rule 7. Leave to appeal to appellate division-Reargument, motion for. Motions for re-argument and applications for leave to appeal from a determination of the Appellate Term to the Appellate Division, under section 1344 of the Code of Civil Procedure must be made upon any day of the term on five (5) days' notice to the adverse party, and must be returnable within twenty (20) days after the entry of the order determining said appeal; all papers to be used on such motion, together with a copy of the opinion, if any, and briefs of counsel, must be delivered to the clerk of the court, and submitted, without argument. Such motions must be based upon an affidavit or a statement setting forth concisely the points claimed to have been overlooked or misapprehended by the court, with proper reference to the authorities relied upon, and the reason why such reargument should be granted or appeal allowed. The briefs may be either printed or typewritten.

An appeal to the Appellate Division from an order granting a new trial will not be allowed unless the appellant files with his notice of application for leave to appeal a stipulation that if the order appealed from be affirmed, or the appeal there from dismissed, judgment absolute may be rendered against him.

A party desiring an order staying proceedings pending a motion for re-argument or an application for leave to appeal must serve the notice provided for in this rule. Upon an affidavit showing the service of such notice, a copy of the moving papers and a statement in such affidavit setting forth the reasons why a stay should be granted, an application for a stay will be entertained. Application for such order must be made to the justices of the Appellate Term who heard the appeal, or one of them, by filing the same with the clerk of the Appellate Term, by whom it will be brought to the attention of the court.

NOTES

The motion may be, and usually is, in the alternative either for re-argument or leave to appeal.

When a re-argument of an appeal from an order or judgment of the City Court is granted, the Clerk of the Apellate Term places the case upon the calendar of the next term after the filing of the order. No new notice of argument need be served or filed. The case will be called in the regular order, must be submitted without oral argument and will be referred by the Justices sitting in that term to the Justices who heard the appeal in the first instance, unless it is a case where a re-argument is ordered to be heard de novo, in which event, it will be heard by the Justices then sitting as though it was on the calendar for the first time. Copies of the briefs used upon the original hearing may be handed up at the call of the calendar or filed with the Clerk prior thereto. They need not be re-served upon the opposing party. If, however, the moving party intends to raise any new point not referred to in his original briefs or to cite new authorities a copy of such supplemental brief must be served upon his adversary and handed up on the call of the calendar and such opposing party will be given leave to reply thereto.

The same practice prevails when a re-argument is granted upon an appeal from an order or judgment of the Municipal Court.

The return upon appeal must be sent back from the Municipal Court to the Clerk of the Appellate Term who refiles it and places it upon the calendar. If the order granting a reargument does not so direct, an ex parte order may be obtained directing the Clerk of the Municipal Court to file the return with the Clerk of the Appellate Term for the purpose of a re-argument being had.

In the case of Gartland v. N. Y. Zoological Society, Law Journal, May 7th, 1909, not reported, it was held that the time to appeal from the determination of the Appellate Term in a City Court case was given by Section 3193 of the Code of Civil Procedure, and in a Municipal Court by Section 1351 of the Code of Civil Procedure. Such appeal must therefore be taken within 20 days from an order or judgment of the City Court and within 30 days from an order or judgment of the Municipal Court, after service of a copy of the order granting leave with notice of its entry.

If the motion for leave to appeal or for re-argument be made returnable promptly an appli cation for an ex parte order staying proceedings pending the hearing and determination of the motion will be entertained or an order to show cause why leave to appeal or a re-argument should not be granted may be obtained with a temporary stay incorporated therein, provided such order is made returnable within five (5) days. The application for the order should be handed to the Clerk, who will procure it to be signed by one of the Justices who heard the appeal and who are alone empowered to grant a stay. Stern v. Barrett Chemical Co., 108 N. Y. Supp., 811. No other Justices or branch of the Supreme Court, unless it be the Appellate Division, has authority to grant a stay upon such a motion, i. e., a stay of proceedings until the hearing and determination of a motion. The stay terminates with the entry of the order without regard to service of a copy of the order or notice of entry thereof. Tuska v. Jarvis, 61 Misc., 224; Smith v. Spalding, 30 How. Pr., 339, 442.

If leave to appeal is granted, a stay pending the hearing of the appeal in the Appellate Division will be granted, and if a re-argument is granted a stay will be granted pending the hearing of the re-argument. If leave to appeal is denied, no stay will be granted pending a motion made in the Appellate Division for leave to appeal and an application for such a stay must be made in that Court.

Rule 8. Motions generally-Practice. Motions may be noticed for any day of the term and must be submitted without argument. Five days' notice of motion must be given, except motions for leave to appeal to this court under Rule 6 and to dismiss an appeal. A notice of such motion, whether founded upon an order to show cause or a regular notice of motion, with proof of service thereof, and the opposing affidavits must be filed with the clerk of the Appellate Term at or before 12 o'clock upon the day on which the same is returnable.

All decisions will, when announced, be accompanied by an order duly signed, unless the court shall otherwise direct. Motions for resettlement of orders must be made upon two days' notice.

Dated July 7, 1915.

NOTES

In all motions, the motion papers and proof of service must be filed with the Clerk of the Appellate Term before 12 M. of the day the same is returnable.

All papers must be endorsed with the County Clerk's number of the Clerk of the County embracing the court from which the appeal is taken.

The opposing party has until 12 o'clock noon of the return day in which to file opposing affidavits, and briefs may be submitted by either party up to that time. The decision of the Court upon motions is embodied in an order which is filed and entered as soon as the motion is decided. No appeal lies from such an order. Gersman v. Levy, 108 N, Y. Supp., 1107. affirmed 126 App. Div., 83.

If a party has served motion papers, but has failed to file them with proof of service, the opposing party upon submitting an affidavit to that effect, and a copy of the papers served upon him, may have the motion dismissed, with costs.

Motions for stays pending appeals must be made returnable before the Appellate Term, and five (5) days' notice must be given. The same relief may be obtained under an order to show cause, which may be made returnable on two (2) days' notice. In a proper case a temporary stay, pending the hearing of the motion, will also be granted. The trial of an action in the City or Municipal Courts may be stayed by the Appellate Term, pending the hearing of an appeal from an order of either Court. Fleischman v. Mengis, 118 N. Y. Supp., 671; Amorisia v. Rand, 88 N. Y. Supp., 356.

In such motions, a copy of the pleadings, the order and of the affidavits used upon the motion in the Lower Court, both for and against the motion, should accompany the moving papers to enable the Appellate Term to determine whether there exists-probable cause for review. If that is not done, or if the moving papers fail to show merit in the appeal, the motion will be denied.

If the order handed down upon the decision of a motion is not a proper order, the party desiring to have it corrected should move promptly for a re-settlement of the order. This motion may be made upon two days' notice. A copy of the order as made, together with the proposed order, should be served upon the other party, with a notice to the effect that the proposed order will be submitted to the Court on the day named therein for signature, The

proposed order should contain a statement that such order is intended to take the place of the original order entered on the

day of

CALENDAR RULES

etc.

Rule 1. The calendar of appeals from orders and judgments of the City Court will be called in the forenoon of the first day of the term at 10 o'clock A. M. The calendar of appeals from orders and judgments of the Municipal Court will be called on the second day of the term at 10 o'clock A. M.

Rule 2. In motion for leave to appeal or for re-argument, an indorsement must be made upon the motion papers stating the term of the court at which the case was argued or submitted. If an appeal upon the calendar is affected by a motion, the motion papers must be indorsed with the calendar number of such appeal.

Rule 3. The points on appeal from judgments and orders of the City Court shall be printed as provided for by Rule 43 of the General Rules of Practice. The points on appeals from the Municipal Court shall be printed or typewritten upon white paper of uniform size, viz., ten and one-half inches in length and eight inches in width, and fastened on the left-hand edge thereof. Upon the right-hand corner of the points submitted to the court shall appear the name of counsel arguing or submitting the same. Upon the left-hand corner of the points submitted shall appear the calendar number of the case on appeal. All points, briefs and motion papers must be filed flat. The county clerk's number of the clerk of the county embracing the court from which the appeal is taken must be indorsed on all motion papers. In appeals from judgments and orders of the City Court ten (10) copies of the points or briefs must be filed, and three (3) copies upon appeals from the Municipal Court must be filed.

Briefs of counsel, when reference therein is made to the testimony given upon the trial, must give the number of the folio in the printed case, if an appeal from the City Court, or the number of the page and the line thereof in the record, if an appeal from the Municipal Court.

If the appellant's brief fails to comply with this rule, the appeal may be dismissed. If the respondent's brief is deficient in this respect, the appeal may be considered on the appellant's brief alone.

Rule 4. After submission or argument of cases and submission of briefs no communications will be accepted from counsel except to correct errors or for citation of an authority.

Adopted July 12, 1915.

RULES OF APPELLATE TERM, SECOND DEPARTMENT

Relating to the Hearing of Appeals from the Municipal Court and the Making and Hearing of Motions in Said Appellate Term.

(As amended to September, 1921.)

Rule 1. Calendar of appeals. The clerk of said appellate term shall, at least eight days before the first day of an appointed term thereof, prepare a calendar of all the appeals to that court in which the returns, conformable in all respects with section 161 of the New York City municipal court code and with rule 3, have been filed ten days prior to the commencement of such term. Such appeals shall be placed upon said calendar according to the date of the filing of the returns respectively, shall be brought on for hearing in the manner provided in rule 4, and shall be continued on said calendar until disposed of.

Rule 2. Motion to dismiss for want of return. If the appellant fails to procure the return on appeal to be made and filed as prescribed in section 161 of said municipal court code, the respondent may move to dismiss the appeal, and such appeal shall be dismissed unless the justices assigned to hear the same shall, for good reason shown, extend the time. (As amended Feb. 2, 1916.)

Rule 3. Returns, points, etc. The stenographer's minutes, attached to the return, and the points on appeal, shall be printed or typewritten upon white paper of the quality and weight prescribed in section 796 of the code of civil procedure shall be