Rule 32. Cases, exceptions, when served; amendments; settlement, etc. Whenever it shall be necessary to make a case, or a case and exceptions, or a case containing exceptions, the same shall be made, and a copy thereof served on the opposite party within the following times:

If the trial was before the court or referee, including trials by a jury of one or more specific questions of fact in an action triable by the court, within thirty days after service of a copy of the decision or report and of written notice of the entry of the judgment thereon.

In the Surrogate's Court, within thirty days after service of a eopy of the decree or order and notice of the entry thereof.

If the trial were before a jury within thirty days after notice of the decision of a motion for a new trial, if such motion be made and be not decided at the time of the trial, or within thirty days after service of a copy of the judgment and notice of its entry.

The party served may, within ten days thereafter, propose amendments thereto, and serve a copy on the party proposing a ease or exceptions, who may then, within four days thereafter, serve the opposite party with a notice that the case or exceptions with the proposed amendments will be submitted for settlement at a time and place to be specified in the notice, to the judge or referee before whom the cause was tried.

Whenever amendments are proposed to a case or exceptions, the party proposing such case or exceptions shall, before submitting the same to the judge or referee for settlement, mark upon the several amendments his allowance or disallowance thereof, and shall also plainly mark thereon and upon the stenographer's minutes the parts to which the proposed amendments are applicable, together with the number of the amendment. If the party proposing the amendments claims that the case should be made to conform to the minutes of the stenographer he must refer at the end of each amendment to the proper page of such minutes. The judge or referee shall thereupon correct and settle the case. The time for settling the case must be specified in the notice, and it shall not be less than four nor more than ten days after the service of such notice. The lines of the case shall be so numbered that each copy shall correspond. The surrogate, on appeal from his court, may by order allow further time for the doing of any of the acts above provided to be done on such appeals.

Cases reserved for argument and special verdicts shall be settled in the same manner. The parties may agree on the facts proven to be inserted in the case, instead of the testimony on the approval of the judge.

No order extending the time to serve a case, or a case containing exceptions, or the time within which amendments thereto may be served, shall be made unless the party applying for such order serve a notice of two days upon the adverse parties of his intention to apply therefor, stating the time and place for making such application. (As amended October 24, 1899.)

Rule 33. Failure to make a case.

If the party shall omit to make a case within the time above limited, he shall be deemed to have waived his right thereto; and when a case is made, and the parties shall omit, within the

several times above limited, the one party to propose amendments, and the other to notify an appearance before the judge, or referee, they shall respectively be deemed, the former to have agreed to the case as proposed, and the latter to have agreed to the amendments as proposed.

Rule 34. Case and bill of exceptions; contents; resettlement; exhibits.

A bill of exceptions shall only contain so much of the evidence as may be necessary to present the questions of law upon which exceptions were taken on the trial; and it shall be the duty of the judge upon settlement to strike out all the evidence and other matters which shall not have been necessarily inserted.

A case or exceptions shall not contain the evidence in haec verba, or by question and answer, unless ordered by the judge or referee by or before whom the same shall be settled. the facts of the case, together with the rulings on the trial, shall be stated in a narrative form, except that where it is claimed But by either party that any particular testimony should be given in haec verba, the judge or referee who settles the case shall determine whether or not a proper presentation of the case for review requires such portion of the evidence to be so stated in haec verba, whereupon the case shall be made accordingly.

If any case or bill of exceptions does not conform to this rule, the court before which the same shall be brought for review may order the same back for resettlement.

Exhibits shall not be printed at length unless the judge or referee so direct.

Where, upon non-enumerated motions, voluminous documents have been used which are material only as to the fact of their existence, or as to a small part of their contents, the parties may, by stipulation, or the court or judge below may, upon notice, settle a statement respecting the same, or the parts thereof to be returned upon the appeal from the order to be used in place of the original documents.

Rule 35. Case to be signed; service of copy.

When a party makes a case, or a case and exceptions, he shall procure the same to be signed by the judge or referee, and filed within ten days after it shall have been settled, or it shall be deemed abandoned, unless the time is extended by order.

Rule 36. Neglect to bring issue of fact to trial; causes where defendant is under arrest preferred.

Whenever an issue of fact, in any action pending in any court has been joined, and the plaintiff therein shall fail to bring the same to trial according to the course and practice of the court, the defendant, at any time after younger issues shall have been tried in their regular order, may move at Special Term for the dismissal of the complaint with costs.

If it be made to appear to the court that the neglect of the plaintiff to bring the action to trial has not been unreasonable, the court may permit the plaintiff, on such terms as may be just, to bring the said action to trial at a future term.

Whenever in any action an issue shall have been joined, if the defendant be imprisoned under an order of arrest, in the action, or if the property of the defendant be held under attachment, the trial of the action shall be preferred. Every cause placed

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apon the calendar of the Trial Term or Special Term for the trial of equity cases shall be moved for argument or trial when reached in its order, and shall not be reserved or put over except by the consent of the court unless otherwise permitted by special rule; and, if passed without being so reserved or put over, it shall be entered on all subsequent calendars as of date when passed, and no term fee shall be taxed thereon for any subsequent term. (As amended October 24, 1899.)

Rule 37. Notice for argument and of motions; order to show cause; where returnable; effect of order staying proceedings when made within ten days of trial term; irregularities to be stated; judgment by default in di

vorce cases.

All questions for argument and all motions made at Special or Trial Terms shall be brought before the court on notice, of not less than eight days, unless a shorter time is prescribed by a judge or court, under section 780 of the Code, by an order to show cause, except that where the attorneys for the respective parties reside or have their offices in the same city or village, such notice may be a notice of five days. If the opposite party shall not appear to oppose, the party making the motion shall be entitled to the rule or judgment moved for, on proof of due service of the notice or order and papers required to be served by them, unless the court shall otherwise direct. If the party making the motion shall not appear, the court shall deny the motion on the filing of a copy, notice of motion, or order to show

cause.

Such order to show cause shall in no case be granted unless a special and sufficient reason for requiring a shorter notice than eight days shall be stated in the papers presented, nor unless in a case where the attorneys for the respective parties reside or have their offices in the same city or village, a special and sufficient reason for requiring a shorter notice than five days shall be stated in the papers presented, and the party shall, in his affidavit, state the present condition of the action, and whether at issue, and, if not yet tried, the time appointed for holding the next Special or Trial Term where the action is triable. An order to show cause shall also (except in the first judicial district) be returnable only before the judge who grants it, or at a Special Term appointed to be held in the district in which the action is triable. (As amended October 24, 1905.)

No order, except in the first judicial district, served after the action shall have been noticed for trial, if served within ten days of the Trial Term, shall have the effect to stay the proceedings in the action, unless made at the term where such action is to be tried, or by the judge who is appointed or is to hold such Trial Term, or unless such stay is contained in an order to show cause returnable on the first day of such term, in which case it shall not operate to prevent the subpoenaing of witnesses or placing the cause on the calendar.

When the motion is for irregularity the notice or order shall specify the irregularity complained of.

This rule, as far as it permits a judgment by default, or by the consent of the adverse party, shall not extend to an action for a divorce, or limited separation, or to annul a marriage.

In the first judicial district all motions must be noticed to he heard at and all orders to show cause must be returnable at the Special Term for hearing of litigated motions, except in cases where the special rules of the first judicial district shall require

such motion to be made at some other term of the court. (As amended October 24, 1899.)

Rule 38. Enumerated motions; non-enumerated motions, what are; contested motions, when not heard at circuit.

Enumerated motions are motions arising on special verdict, issues of law, cases, exceptions, appeals from judgments sustaining or overruling demurrers, appeals from judgment or order granting or refusing a new trial in an inferior court, appeals by virtue of sections 1346 and 1349 of the Code, agreed cases submitted under section 1279 of the Code, and appeals from final orders and degrees of Surrogate's Courts, and matters provided for by sections 2085-2099 and 2138 of the Code.

Non-enumerated motions include all other questions submitted to the court, and shall be heard at Special Term except when otherwise directed by law.

Contested motions shall not be noticed or brought to a hearing at any Special Term held at the same time and place with a Trial Term, except in actions upon the calendar for trial at such term, and in which the hearing of the motion is necessary to the disposal of the cause unless otherwise ordered by the Justice holding the court; and except, also, that in counties in which no Special Term distinct from a Trial Term is appointed to be held, motions in actions triable in any such county may be noticed and brought on at the time of holding the trial and Special Term in the county in which such actions are triable.

Rule 39. Notes of issue, when to be filed; separate calendar for non-enumerated motions; preferred cases; cases not reserved; when passed, place on subsequent calendars. At the first term of the Appellate Division of the Supreme Court in each department, and at such other times as the court shall from time to time direct, the clerk shall make up a calendar which shall consist of cases pending and undisposed of as follows: Notes of issue for the Appellate Division shall be filed eight days before the commencement of the court at which the cause may be noticed. The clerk shall prepare a calendar for the Appellate Division and, except in the first department, cause the same to be printed for each of the Justices holding the court. Appeals shall be placed on the calendar, according to the date of the service of the notice of appeal; and all subsequent enumerated appeals in the same cause shall be put on the calendar as of the date of the first appeal; and other cases as of the time when the question to be reviewed arose. Appeals in non-enumerated motions shall also be placed upon a separate calendar. Cases entitled to preference shall be placed separately on the calendar. The Appellate Division of each department shall adopt rules regulating the hearing of causes and of calendar practice in such department not inconsistent with the Code of Civil Procedure.

Judgment of reversal by default will not be allowed. Where the 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 appellant only appears he may either argue or submit the case. If neither party appears, the case will be passed and placed at the foot of the calendar. When any cause shall be twice passed, the clerk shall enter an order of course dismissing the appeal or the proceedings, or denying the motion for a new trial- but the court may, upon motion, vacate the order and restore the cause.

Rule 40. Enumerated motions; what papers to be furnished, and by whom; points to contain a statement of facts.

The papers to be furnished on enumerated motions at Special Term shall be a copy of the pleadings, when the question arises on the pleadings, or any part thereof, a copy of the special verdiet, return or other papers on which the question arises. The party whose duty it is to furnish the papers shall serve a copy on the opposite party, except upon the trial of issues of law, at least five days before the time for which the matter may be Toticed for argument. If the party whose duty it is to furnish the papers shall neglect to do so, the opposite party shall be entitled to move, on affidavit and on four days' notice of motion that the cause be struck from the calendar (whichever party may have noticed it for argument), and that the judgment be rendered in his favor.

The papers shall be furnished by the plaintiff when the question arises on special verdict, and by the party demurring on the trial of issues of law, and in all other cases by the party making the motion. Each party shall prefix to his points a concise statement of the facts of the case, with reference to the folios; and if such statement is not furnished, no discussion of the facts by the party omitting such statement will be permitted. (As amended October 24, 1899.)

Rule 41. Papers to be furnished, on appeal, by appellant; printed copies of case and points; appeals from non-enumerated motions; delegation of powers.

In all cases to be heard in the Appellate Division, except appeals from non-enumerated motions, the papers shall be furnished by the appellant or the moving party, and in cases agreed upon, Under section 1279 of the Code, by the plaintiff.

The party whose duty it is to furnish the papers shall cause a printed copy of the requisite papers to be filed in the office of the clerk of the Appellate Division within twenty days after the appeal has been taken or the order made for the hearing of a cause therein or the agreed case filed in the clerk's office pursuant to section 1279 of the Code; but if it shall be necessary to make a case or case and exceptions after the appeal shall have been taken or the order made for the hearing in the Appellate Division the papers shall be filed within twenty days after the settleent and filing of the case; and shall serve upon his adversary three printed copies of such papers. Such papers shall consist of a notice of appeal, if an appeal has been taken; a copy of the judgment roll, or the decree in the court below, and the papers pon which it was entered; if no judgment was entered, the pleadings, minutes of trial, and the order sending the case to the Appellate Division or the order appealed from, or the papers required by section 1280 of the Code of Civil Procedure. To these papers shall be attached the case or case and exceptions if it is to be used in the Appellate Division. All the foregoing papers shall be certified by the proper clerk or be stipulated by the parties to be true copies of the original. There shall be prefixed to these papers a statement showing the time of the beginning of the action or special proceeding, and of the service of the respective pleadings; the names of the original parties in fall; and any change in the parties, if such has taken place. There shall be added to them the opinion of the court below, or