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Dismissal of appeal — Rule 3
court below is duly filed with the clerk of such term at least ten days before the commencement of the term; nor, in the case of appeals from the City Court, unless an affidavit is filed with such clerk at least ten days before the commencement of the term, by which it appears that three copies of such return, duly printed as required by the General Rules of Practice, have been served upon the attorney for the respondent. Upon such return being filed as aforesaid, and in the case of appeals from the City Court upon an affidavit as aforesaid being also filed, the clerk shall place the appeal upon the calendar in the order in which the return was filed.
Upon an appeal from the City Court the judgment or order of the court shall be entered in the office of the clerk of the Supreme Court; a certified copy of such judgment or order shall be annexed to the return from the City Court, which certified copy and return shall be transmitted to the City Court, as required by section 1345 of the Code of Civil Procedure. Upon an appeal from the Municipal Court the judgment or order of the Appellate Term shall be entered in the office of the clerk of the Supreme Court, and a certified copy thereof annexed to the return received from the Municipal Court, which return and certified copy of the judgment or order shall be returned to the district of the Municipal Court from which the appeal was taken, as provided by section 327 of chapter 580 of the Laws of 1902, which shall remain on file in the said Municipal Court. (As amended July 1, 1908.) Rule 3. Dismissal of appeal for failure to file and serve return
In appeals from the City Court, in case the appellant does not cause the return to be filed with the clerk of the Appellate Term and print and serve three copies thereof upon the attorney for the respondent, as required by the General Rules of Practice, within twenty days after the
Motion for attachment; cases and points — Rules 4,
settlement of the case upon appeal, and in case of an appeal from an order of the City Court within fifteen days after service of the notice of appeal upon the attorney for the respondent, the respondent may move, upon five days' notice, on the first day of the term of such court, to dismiss the appeal, and the appeal shall be dismissed unless the time of the appellant to cause such return to be filed and copies thereof to be printed and served be extended by the Justices assigned to hear such appeals, or one of them, for good cause shown.
In appeals from the Municipal Court of the City of New York, if the appellant does not procure the return to be made to the Appellate Court within the time prescribed by section 317 of chapter 580 of the Laws of 1902, the respondent may move upon five days' notice, on the first day of the term, to dismiss the appeal, and such appeal shall be dismissed unless the Justices assigned to hear such appeals, or one of them, for good cause shown, shall extend the time. (As amended Dec. 31, 1909.)
Rule 4. Attachment; motion for If the Justice of the Municipal Court whose duty it is to cause a return to be filed with the Appellate Term shall not make such return within the time prescribed by section 317, chapter 580 of the Laws of 1902, either party may move the Appellate Term, upon notice to the attorney for the adverse party and to such Justice to compel such return by attachment. (As amended Dec. 31, 1909.)
Rule 5. Cases and points, printing, filing, and service thereof;
dismissal of appeal for omission; hearing or submission
of appeals The cases and points and all other papers furnished to the Appellate Term on an appeal from the City Court
Cases and points; dismissal; hearing — Rule 5
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 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
Failure of either party; application to appeal — Rules 6, 7
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. (As amended July 1, 1908.)
Rule 6. Failure of either party to appear
If the appellant does not appear upon the call of the calendar, the judgment or order appealed from shall be affirmed. If the appellant appears and the respondent fails to appear, the appellant may either argue or submit his case, but judgment of reversal by default will not be allowed.
Rule 7. Application to appeal to Appellate Division; motions
for reargument Motions for reargument 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 written notice to the adverse party on the first day of the term next succeeding the term at which the case was decided. Such motions and applications 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, together with a copy of the opinion, if any. The briefs may be either printed or typewritten. All motions and applications must be submitted without oral argument.
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 therefrom be dismissed, judgment absolute may be rendered against him.
A party desiring an order staying proceedings pending a motion for reargument 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 an order must be made to the Justices of the Appellate Term who heard the appeal, or one of them, by presenting the same to the clerk of the Appellate Term, by whom it will be brought to the attention of the court. (As amended Dec. 31, 1909.)
Rule 8. Notice of motions; motion calendar; filing of motion
papers; decisions to be accompanied by orders Five days' notice of motion shall be given of all motions made in the Appellate Term, except motions for restitution, under section 323 of the Municipal Court Act. In all motions noticed for the first day of the term a notice of such motion, whether founded upon an order to show cause or a regular notice of motion, with proof of service thereof, together with a note of issue, must be filed with the clerk of the Appellate Term on the Friday preceding the commencement of the term. The Motion Calendar will be published on the Saturday preceding the commencement of the term, but no motion will be placed thereon except upon compliance with this rule. The Motion Calendar will not be called and no oral argument will be allowed. The briefs of counsel and the answering