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. ARTICLE FIRST. GENERAL REGULATIONS RESPECTING TIME. SECTION 780. Notice of motion, to be eight days. 785. Qualification of last section. 786. Orders in certain actions; how published. 787. Time for publication of notice; how computed. TITLE 6. motion, to be eight § 780. Where special provision is not otherwise made by law, or by Notice of the general rules of practice, if notice of a motion, or of other any proceeding in an action, before a court or a judge, is necessary, it must, days. if personally served, be served at least eight days before the time appointed for the hearing; unless the court or a judge thereof, 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. enlarged, § 781. Where the time, within which a proceeding in an action after How time its commencement, must be taken, has begun to run, and has not ex- before its pired, it may be enlarged, upon an affidavit showing grounds therefor, expiration. by the court, or by a judge authorized to make an order in the action. affidavit served. time has § 782. In a case specified in the last two sections, the affidavit, upon copy of which the order was granted, or a copy thereof, must be served with a must be copy of the order; otherwise, the order may be disregarded. §783. After the expiration of the time, within which a pleading Relief after must be made, or any other proceeding in an action, after its commence- expired. ment, 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. cannot be § 784. A court, or a judge, is not authorized to extend the time, When time fixed by law, within which to commence an action; or to take an extended. 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 TITLE 6. Qualification of last section. Orders in certain ac tions; how published. Time for publication puted. order, as the case may be, for doing it; except in a case specified in the next section. § 785. Where a party, entitled to appeal from a judgment or order, dies, within sixty days, after the entry of the same, or next before the expiration of the time within which the appeal may be taken; or where a person, entitled to move to set aside a final judgment, for error in fact, dies, within sixty days next before the expiration of the time to make such a motion, the court, by which the order was made, or the judgment rendered, may allow the appeal to be taken, or the motion to be made, by the heir, devisee, or personal representative of the decedent, as the case requires, if the application, for leave so to do, is made within four months after the entry of the judgment or order, or the expiration of the time prescribed by law for the motion. § 786. 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. § 787. The period of publication of a legal notice, in an action or of notice; special proceeding, brought in a court, either of record or not of record, how com- 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. Time for doing any § 788. The time within which an act, in an action or special proceedact; how ing, brought, as specified in the last section, is required by law to be computed. done, must be computed, by excluding the first, and including the last day; except where it is otherwise specially prescribed by law. If the last day is Sunday, or a legal holiday, it must be excluded. Where the act is required to be done within two days, and an intervening day is Sunday, or a legal holiday, it must also be excluded. of certain ARTICLE SECOND. PREFERRED AND DEFERRED CAUSES. SECTION 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. 795. Note of issue to state time when passed. Preference § 789. A trial, motion, appeal, or hearing, in an action by the peoactions by ple to recover money, funds, credits, or other property, held or owned the people. 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. ART. 2. criminal § 790. A criminal action, including an appeal or other proceeding Id.; of in a criminal cause, is entitled, under the direction of the court, to actions. preference in the trial or hearing thereof, over all civil actions and special proceedings, except as prescribed in the last section. civil ac § 791. Civil causes are entitled to preference among themselves, in Iḍ.; among the trial or hearing thereof, in the following order, next after the causes i specified in the last section but one: 1. An action or special proceeding, in which the people of the State are parties, and appear by the Attorney-General; where the AttorneyGeneral has given notice, at the time of service of notice of trial or argument, of a particutar day in the term, on which he will move it. If the action or special proceeding is not moved by him 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. Except in the court of appeals or the supreme court, an action or special proceeding, in which 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 sole party, plaintiff or defendant. 4. An action or special proceeding, in which the mayor, aldermen, and commonalty of the city of New-York are parties. 5. 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. 6. In any court, an action, in which an executor or administrator is the sole plaintiff or sole defendant; an action for the construction of, or an adjudication upon, 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, 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 granting general letters of administration. 7. An action, wherein the defendant is actually confined in jail, by virtue of an order of arrest, for want of bail. 8. 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. 9. An appeal from a final order, made in a summary proceeding to recover the possession of real property. TITLE 6. Id.; in mandamus tion. 10. A motion to vacate or modify a provisional remedy, or an appeal from an order, allowing or continuing a provisional remedy. 11. 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 a corporation or association. 12. An action against a corporation, founded upon a note, or other evidence of debt, for the absolute payment of money. 13. An action against a sheriff, in his official capacity. 14. A cause entitled to preference, by the general rules of practice, or by the special order of the court in the particular case. Where an issue of law and an issue of fact, or two or more other questions of 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. § 792. Where a writ of mandamus or of prohibition has been issued, or prohibi- from the general term, 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 or appeals, in the discretion of that court, be preferred over any of the causes specified in the last section. When an order is § 793. Where the right to a preference depends upon facts, which do necessary. 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. Such an order is not appealable; but it may be vacated by the judge or judges holding the term, at which the preferred cause is noticed for trial or hearing. 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 seventh or eighth thereof, may be made ex parte, and is conclusive. § 794. Where an action or special proceeding, placed upon the calendar of a term of a court of record, held in the city and county of how placed New-York, is regularly called and passed, without a postponement by calendar. the court, for good cause shown, it must thenceforth be placed on the same or a future calendar, as if the date of the issue was the time when it was thus passed. When cause passed, upon the Note of issue to state passed. § 795. In a case specified in the last section, the party placing the time when cause upon the calendar, for a subsequent term, must state, in the note of issue, the date of the issue, as prescribed in that section. If he omits to do so, by reason whereof the cause retains its priority on the calendar, the court, on the application of the adverse party, or of its own motion, may strike the cause from the calendar. ARTICLE THIRD. SERVICE OF PAPERS. SECTION 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. ART. 3. § 796. A notice or other paper in an action, may be served on a party Paper may or an attorney, either by delivering it to him personally, or in the man- be served ner prescribed in the next section. personally. service. § 797. Where the service is not personal, it may be made as follows: Other 1. Upon a party or an attorney, through the post-office, by deposit- modes of ing the paper, properly inclosed in a post-paid wrapper, in the postoffice 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, between six o'clock in the morning and nine o'clock in the evening, with a person of suitable age and discretion. time when the post § 798. Where it is prescribed in this act, or in the general rules of Double practice, that a notice must be given, or a paper must be served, within served a specified time, before an act is to be done; or that the adverse party through has a specified time, after notice or service, within which to do an act; office. 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. per to be 799. Where a party has appeared, a notice or other paper, required when pato be served in an action, must be served upon his attorney. If a served on defendant has not appeared, service of a notice or other paper, in the attorney; ordinary proceedings in the action, need not be made upon him, unless vice not rehe is actually confined in jail, for want of bail. when ser quired. be made on § 800. Where a party to an action, who has appeared in person, re- when sersides without the State, or his residence cannot, with reasonable dili- vice may gence, be ascertained, and he has not designated an address, within clerk, for the State, upon the preceding papers, service of a paper upon him may dent. be made, by serving it on the clerk. non-resi branch § 801. In the city of New-York, where a paper is served, or a return service is made, through the post-office, the deposit of the package in a branch through post-office has the same effect, as a deposit in the general or principal post-office post-office of that city. in New York city. This article a not appli § 802. 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 case where the mode of service is specially prescribed by law. cable to service of summons, etc. 151 |