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unless otherwise specified in the particular case. is contained in a judgment, is an order.

Such a direction, unless it

§ 768. Id.; of a motion. An application for an order is a motion. $769. Motions in supreme court; where to be heard. [AMENDED BY CH. 542 OF 1879.] A motion, upon notice, in an action in the supreme court, must be made within the judicial district, in which the action is triable, or in a county adjoining that in which it is triable; except that where it is triable in the first judicial district, the motion must be made in that district; and a motion, upon notice, cannot be made in that district in an action triable elsewhere. But this section does not apply to a case, where it is specially prescribed by law that a motion may be made in the county, where the applicant, or other person to be affected thereby, or the attorney, resides.

§ 770. Motions in New York city. In the first judicial district, a motion which elsewhere must be made in court, may be made to a judge out of court, except for a new trial on the merits.

§ 771. In absence of judge, motion may be transferred to another judge. Where notice of a motion is given, or an order to show cause is returnable, before a judge, out of court, who, at the time fixed for the notion, is or will be absent, or unable, for any other cause, to hear it, the motion may be transferred, by his order, made before or at that time, or by the written stipulation of the attorneys for the parties, to another judge, before whom it might have been originally made.

§ 772. What judges may make orders out of court without notice. [AMENDED BY CH. 416 OF 1877.] Where an order, in an action, may be made by a judge of the court, out of court, and without notice, and the particular judge is not specially designated by law, it may be made by any judge of the court, in any part of the state; or, except to stay proceedings after verdict, report, or decision, by a justice of the supreme court, or by the county judge of the court where the action is triable, or in which the attorney for the applicant resides. Where such an order grants a provisional remedy, it can be vacated only in the mode specially prescribed by law; in any other case, it may be vacated or modified, without notice, by the judge who made it, upon notice, by him, or by the court. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.]

§ 773. The same. The limitation, contained in the last section, of the county judges who may make an order, does not apply to a case where it is prescribed in this act, in general words, that a particular order may be made by a county judge or by any county judge.

§ 774. Review of order made by judge of another court. [AMENDED BY CH. 416 OF 1877.] An order, made by a judge of a court, other than the court in which the action is pending, may be reviewed in the same manner, as if it was made by a judge of the court in which the action is pending.

$775. When stay of proceedings not to exceed twenty days. [AMENDED BY CH. 416 OF 1877.] An order to stay proceedings in an action, for a longer time than twenty days, shall not be made by a judge, out of court, except to stay proceedings under an order or judgment appealed from, or where it is made upon notice of the application, to the adverse party, or in cases where special provision is otherwise made by law.

§ 776. Subsequent application for order after denial, etc., of prior application. If an application for an order, made to a judge of the court, or to a county judge is wholly or partly refused, or granted conditionally, or

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, upo roof, by affidavit, of the facts.

§ 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.

$779. Proceedings stayed by failure to pay costs; how costs to be 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 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 case when the remedy of enforcement by such proceedings now exist. [Aм'D CH. 416 OF 1877; CH. 542 of 1879; CH. 397 OF 1882; CH. 181 OF 1884.]

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.

SECTION 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.

SECTION 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.

§ 780. Notice of motion and order to show cause. 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 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. [AM'D CH. 219 OF 1890; in effect Sept. 1, 1890.]

§ 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.

§ 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.

$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.

§ 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.

§ 785. Qualification of last section. [AMENDED BY CH. 416 OF 1877.] 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.

§ 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.

$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.

§ 788. Time for doing any act; how computed. [AMENDED BY CH. 416 OF 1877.] The time within which an act, in an action or special proceeding, brought as specified in the last section, is required by law to be 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 public holiday, it must be excluded. Where the act is required to be done within two days, and an intervening day is Sunday, or a public holiday, it must also be excluded. [REPEALED BY CH. 677 OF 1892.]

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.

§ 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.

§ 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. [AMENDED BY CH. 416 OF 1877, BY CH. 163 OF 1879 AND BY CH. 542 of 1879.] 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, and in which the people, or such officer or board, appear by the AttorneyGeneral; where the Attorney-General has given notice, at the time of service of notice of trial or argument, of a particular 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. An action or special proceeding, in which the mayor, aldermen and commonally of the city of New York, or a board of officers, exercising powers con ferred 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.

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 an infant, or a receiver, appointed by the court, 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 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 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. [AM'D BY CH. 795 OF 1895. In effect Sept. 1, 1895.]

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. [AM'D BY CH. 289 OF 1895. In effect Sept. 1, 1895.]

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 or town is sole plaintiff or defendant.

8. An action against a corporation founded upon a note, or anothers * 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 stay 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 boud or bonds, or an instrument or instruments of indemnity, or an undertaking or undertakings given to him in his official capacity. [AM'D CH. 120 OF 1887.]

10. 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. [AM'D Cís. 397 OF 1882 AND 391 OF 1883.

§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

*So in the original.

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